
    BARBER ASPHALT PAVING CO. v. CITY OF NEW YORK.
    (Supreme Court, Appellate Division, First Department.
    February 17, 1911.)
    Appeal from Trial Term, New York County.
    Action by the Barber Asphalt Paving Company against the City of New York. From a judgment for plaintiff, and from an order denying a new trial, defendant appeals.
    Reversed, and new trial ordered.
    ■Argued before INGRAHAM, P. J., and LAUGHUN, CLARICE, MILLER, and DOWLING, JJ.
    
      Terence Farley, for appellant.
    L. Laflin Kellogg, for respondent.
   DOWLING, J.

The contract between plaintiff and defendant was entered into on July 29, 1901, and provided for the regulating and repaving with asphalt pavement of Broadway from Fourteenth street to Canal street, in the city of New York. The period of maintenance therein provided was 10 years, and the percentage retained as security for full performance by the contractor was 20 per cent., whereof 4 per cent, was to be returned to him on the expiration of the sixth year from the acceptance of the work and 4 per cent, annually thereafter. The work was accepted December 2, 1901. The total cost was $199,-822.27, whereof $174,276.16 was for new pavement, and the retained percentage amounted to $34,855.23, whereof $6,971.04 had been returned to the contractors, leaving a balance still retained of $27,884.19, for which amount, with interest,, plaintiff had judgment.

The questions presented upon this appeal are similar to those decided in Mack Paving Company of New York v. City of New York, 127 N. Y. Supp. 738, and for the reasons therein assigned, no cause of action having been established by the plaintiff, the judgment and order appealed from must be reversed, and a new trial ordered, with costs to the appellant to abide the event. All concur.  