
    Lawrence W. Coates and William W. Whyard, Respondents, v. Village of Nyack, Appellant.
    Second Department,
    June 18, 1908.
    Appeal — report of referee to hear and determine — municipal contract — right to cancellation — measure of recovery'—interest.
    The report of a referee appointed “to try, hear and determine” has the same force and effect as though the trial had been had at Special Term, and before the Appellate Division can reverse the findings it must appear that they are against the weight of evidence, or that the proof so clearly preponderates in favor of a contrary result that it can be said with a reasonable degree of certainty that the referee erred in his conclusion.
    Where a municipal contract for the construction of public water works provides that the water board may suspend or cancel the agreement at any time, if in its discretion it appear that the interests of the municipality so require, and in such case the contractor shall be paid in full for all work done prior to the suspension or cancellation, but shall not be entitled to damages therefor, the contractor, after the cancellation of the contract, is only entitled to recover for work done; he cannot recover for materials or instruments procured for the purpose of doing the work, unless they were taken by the municipality.
    A contractor suing a municipality after the rescission of such contract is not entitled to interest, for the amount due is not merely a matter of computation.
    Various items of damage examined and judgment reversed, unless the plaintiff agree, to reduce the recovery.
    o Appeal by the defendant, the Village of Hyack, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the comity of Eockland on the 5tli day of April, 1907, upon the report of a referee appointed to hear, try and determine the issues.
    
      James M. Gray [Mortimer B. Patterson with him on the brief], for the appellant.
    
      George A. Wyre, for the respondents.
   Jenks, J.:

In 1897 the plaintiffs, as successful bidders, entered into a contract with the water board of the defendant, and thereunder began to construct public water works, which they did not finish. The defendant contends that they abandoned the work. However this may be, on June 3, 1899, the said board gave formal notice to the plaintiffs, whereby it stated that the contract was long since terminated, but as it noted from a communication from the plaintiffs that the plaintiffs considered the contract as still in force, it gave notice, in the exercise of its discretion, and deeming that the best interests of the village so required, that it abandoned, canceled and terminated the contract. The contract provided: “ It is further expressly agreed that the parties of the first part shall have the right to suspend or cancel this Agreement at any time if, in their discretion, it appears to them the interests of the Village of Hyack so require, and in' such case the parties of the second part shall be paid in full for all the work done prior to the date of such suspension or cancellation, but shall not be entitled to any damages therefor.” A new contract was made with another. This" action is brought to recover $11,327 on five separate causes of action, with interest. The judgment entered is for $10,232.01, and the amount thereof is made up of $5,627.92 excess of judgment for principal ($14,535), overpayments of $8,907.98, interest from June 30, 1899, $2,616.98, and $1,987.11 costs.

The report of a referee has the same force and effect as though the trial had been held at Special Term. (Kennedy v. McKone, No. 2, 10 App. Div. 97.) Before this court can reverse the findings, it must 0appear that they were against the weight of evidence, or that the proof so clearly preponderated in favor of a contrary result that it can be said with a reasonable degree of certainty that the trial court erred in its conclusion. (Lowery v. Erskine, 113 N. Y. 55; Foster v. Bookwalter, 52 id. 168; Marden v. Dorthy, No. 1, 12 App. Div. 176.) Certain items making up the principal recovered are attacked. Of these, some can be "sustained, and others cannot. The recovery for the pumping station (for which the contract price was $3,400), fixed at $3,360, should be reduced by $100, inasmuch as the uncontradicted evidence shows that the parties agreed to allow $100 for the non-erection of the office, and, therefore, this sum, and not $40, which was but the estimated cost of the. office, is deductible.-

The recovery under the 3d cause of action should stand at $1,208.49. The only item attacked is for cartage of certain brick. If this brick was used by the plaintiffs, the cartage was not chargeable against the defendant, and it would not matter if the cartage was' for brick ' bought by the defendant on account of the plaintiffs to replace brick furnished' by the plaintiffs and rejected. But it appears that the brick was finally, sold by the defendant, but not for the account of the plaintiffs. If so, then the cartage was a proper charge against the defendant. It is true that a witness for the defendant testifies that some of this brick was used in the work. But it was for the defendant to show what part of it was used in the work, and, therefore, excluded from the amount sold.' This it has not done. The recovery- for the construction of the pure water well, excluding the removal of water, should stand at $1,319.37 for I think that, upon the evidence, we cannot hold counter to the referee that the crib which caused this increased expense was a detail of the work,. and was within the contemplation of the original contract, or that its use ivas essential in the work required to be done under the contract. The referee found that the plaintiffs excavated 11,400 cubic yards of earth in the construction of the filter bed, for which the contract price was twenty-nine cents' per yard, and “ performed work and furnished materials in making soundings at the request of the defendant, furnishing engine, pump, men and coal, pumping and beeping the excavation free from water, which I find all to be of the reasonable value of $5,374.15.” It is contended that the item is erroneous because it makes allowance for 3?400 cubic yards. I think-that we cannot disturb the finding of the referee in this-respect. The cost'of this digging amounts to' $3,306, and this amount deducted from the amount allowed by the referee would leave abalance of- $2,068.15, which is made up for othér work described in that finding. So far as the pumping out of the water is concerned, it is quite true that the engineering work as prescribed by the contract required . such pumping as was incidental to the construction, but it is also true that during .the progress .of the work the defendant, at the instance of its consulting engineer, caused various soundings to be made, and there is evidence .that consequent thereto there was a large increase in the volume of' water which came into the work. Moreover, there is evidence that-during the period including the time of sounding the work was suspended by order of the defendant. - It is also true, that about two weeks after the increased-.volume of the water due tó the sounding the Hackensack river or creek broke in upon the work and the influx was of large volume. If the plaintiffs sought to recover for the extra • pumping due to the increased volume of water consequent-upon the influx of the Hackensack river or creék, I think they could not prevail for the reason that their contention that the breaking in of the ri-ver was due to the' soundings is based upon surmise and not proof, whereas the defendant’s witnesses and- engineers testify that the influx was not due to that cause. But there is evidence that the work was suspended, as I have said; for a period, and also evidence that the pumping was' necessary on account of Work to be done; there by an independent contractor, Pearsall, and that the plaintiffs at this time had ceased to do their own work and tlie defendant ordered this pumping to be done. It is true that the time of the pumping is indefinite if we seek for exact dates, but it is sufficiently shown by the • testimony, and the timé is specifically stated in one part of the evidence to be 59 days. The price charged by the plaintiffs ■ is' severely criti-' eised, but'the evidence of the several witnesses, of 'whom all certainly are. not favorable to the plaintiffs, varies as to the proper charge from $15 to $20 a day. ■ I think we cannot disturb, the finding of the. referee allowing $18 a day. for 59 days, and his finding, so far as this amount is cohcernéd, should be affirmed.

The plaintiffs plead that they have suffered damage by reason of moneys expended in .the preparation. for said work to be performed under said contract in securing right of way, building bridges, purchasing tools, machinery, employing engineer, building storage buildings, and materials damaged and destroyed, and in the expending' of moneys in preparing crushed stone, and in loss and damage to material and extra material furnished for said work, all of which work performed and materials purchased and buildings erected and moneys expended were necessary under the terms and conditions of said contract, plans and specifications, and for loss of profit in being prevented by the defendant from completing the work to be performed under said contract, all to the damage of plaintiffs in the sum of six thousand dollars ($6,000) of which no part has been paid.” And the learned referee under this claim awarded to them $1,946.30, made up of items stated by him as follows : 60 yds. of sand at $1.50 per yd. 22 wheelbarrows at $16 per doz. 60 cement boxes at 80 cents apiece. 2,200 ties at 10 cents apiece. 250 yds. gravel at $2.00 per yd. Cement shed, 16x20 —14 ft. post. Car load and a half of cement. Planking. Building road.” The learned referee in his opinion says: “ I am aware that this claim does not. appear in the complaint or bill of particulars, however the evidence was allow.ed and received by Mr. Justice Barnard under the general issue, after objection by defendant.” It appears that evidence on this point was met by objections and exceptions and further that the complaint was not amended so as to conform to the proof. The items which go to constitute this amount were not included in the pleading, “ securing right of way, building bridges, purchasing tools, machinery, employing engineer, building storage buildings, and materials damaged and destroyed, and in the expending of moneys in preparing crushed stone.” And so they would not, for example, include the specific item of $340 testified to by the plaintiff as the' cost of build-. . ing a piece of road. I think that the defendant, under the provisions of this contract, had á right to suspend or to terminate the contract, while the provision was that in 'such event the plaintiffs should recover for the work done. I think that the plaintiffs are not entitled to recover for these specific items on the. theory that it is work done, for such items covered material or instruments for the doing of work. Under the terms of the contract the plaintiffs were bound to contemplate the possibility of the termination of the contract whenever the defendant’s officers deemed it for the best interests of the village and as'they .were thereby relegated to recover for work done they cannot recover for the materials brought to hand or the instruments procured, for the doing of the work. If any ■ of the material, tools, etc., were taken or kept by the defendant, then; the plaintiffs might recover on' the theory of a conversion. For these reasons I think that these items should be excluded .from the case under' the present pleadings in any e.vent, without prejudice, however, to the plaintiffs to recover by conversion or appropriate action for the matérial or tools,- etc.) which they assert they left upon the premises and which they were prevented from taking away.'

I think that interest.cannot be allowed. (Beckwith v. City of New York, 121 App, Div. 465; Excelsior Terra Gotta Co. v. Harde, 181 N. Y. 13, and Sweeny v. City of New York, 173 .id. 417.) For . interest is.only allowance in a case like this where the amount due to the plaintiffs under their demand was merely a matter of computation. ■ ■

The judgment is reversed and a new trial granted, costs to abide the'event, unless the plaintiffs within twenty days shall consent to reduce the sum to $1,247, with costs arid interest from the time of ■ the entry-of the judgment, in which event the judgment as modified is affirmed, without the -costs of this appeal' to either party.

Hooker, Gaynor, Rich and Miller, JJ., concurred.

Judgment reversed and new trial granted, costs to abide the ' event, unless the plaintiffs within twenty .days shall consent to reduce the amount off the recovery to $1,247, with costs arid inter- ■ est from the time, of the entry of the judgment, in which event the' ■ judgment as modified is affirmed, without costs, of this appeal to either party. • ■ - " '• ■. • , . .  