Dwyer v. Mayor of New York

Laug-hxin, J. : The plaintiff contracted with the city of New York, through the commissioners of the department of public parks, for the construction of a boiler house and engine room for the Metropolitan Museum of Art. The complaint contains two causes of action ; the first is to recover $669.30, the balance unpaid upon the contract; the second, for damages caused by the wrongful rulings, orders and directions of the architect and board of park commissioners in requiring the plaintiff to do over again certain work which it is alleged he completed in accordance with the contract, plans and specifications, and also compelling him to furnish extra work, labor and materials under the wrongful claim that the same were embraced within the contract. The allegations of the complaint with reference to the first cause of action proceed upon the theory of complete performance by the plaintiff. The specifications forming a part of the contract expressly provide that the architect’s certificate that the contract has been faithfully performed with reference to the materials furnished and work done should be a condition precedent to the right of the plaintiff to payment for any part of the work. Upon the trial the plaintiff failed to show that the work was completed to the satisfaction of the architect, or that the latter had furnished a certificate to that effect. The complaint contains no allegation excusing the production of the architect’s certificate. Evidence was offered, however, tending to show complete performance by the plaintiff in accordance with the contract and specifications and that the architect unreasonably withheld his certificate, insisting that the work had not been properly performed. The plaintiff made no motion to amend his complaint to conform to the proof in this regard. The judgment entered upon the nonsuit cannot be reversed unless the plain — 227 — tiff established oprimía facie case upon the complaint as it stood at, the time the motion was granted, for he could only recover as matter of strict legal right according to the allegations of his complaint,, even if the evidence would have justified an amendment and a, recovery on another theory. The plaintiff was not entitled to recover on the theory of complete performance under this contract without the production of the architect’s certificate unless he laid the foundation in his complaint for the evidence excusing compliance in this regard. (Weeks v. O'Brien, 141 N. Y. 199.) It is true that in this case, as in the case of Weeks v. O'Brien (supra), the evidence developed the fact that this work was taken from the plaintiff and completed by the city pursuant to a notice claimed to have been given under the contract, and it further appears that the cost of completion was considerably less than the balance unpaid on the contract price. Had the plaintiff so elected, he would have been, entitled to recover this balance in these circumstances without regard, to the architect’s certificate (Weeks v. O'Brien, supra); but he made no such election, and, so far as is disclosed by the record, his contention throughout the trial was that he was entitled to recover the full balance without deduction for any expenditure by the city. The court, therefore, committed no error in dismissing the complaint as to the first cause of action. We think, however, that the proof warranted a recovery on the second cause of action. The complaint relating to this cause of action alleges, among other things, that “ the defendant, through its officers and agents, would not permit the plaintiff to proceed and carry out the said contract in a, reasonable, proper and expeditious manner, but by and through the wrongful act, neglect and default of the defendant, its officers and agents, the plaintiff was hindered and delayed and put to great loss and expense by reason of said wrongful act, neglect and default, and was compelled to do his (plaintiff’s) work at a largely increased cost by reason thereof. “ That among other things the defendant, its officers and agents, compelled the plaintiff to attempt to make a certain horizontal boiler flue under the cellar floor of the said boiler house watertight, which was an impracticable thing to do, and not required by the plans and specifications of said contract. * * * Compelled plaintiff to take down and rebuild horizontal flue at boiler house — 228 — after the same had been built by plaintiff according to the said contract and the plans and specifications thereof.” The plaintiff’s testimony shows that he constructed this flue literally in accordance with the contract plans and specifications; that early in the construction of the work he notified the architect that the flue, if constructed according to the plans and specifications, would not be watertight, as was evidently intended; that he was subsequently directed by the architect to complete the flue without any change or alteration of the plans and specifications therefor; that after completion it was ascertained that the flue was not watertight, and the architect thereupon materially altered the plans and specifications with reference to the manner of constructing it, and directed the plaintiff to take it down and remove it, and reconstruct it in accordance with such altered plans and specifications; that plaintiff, insisting that he had performed his contract in this regard and was under no obligation to do the work over again in a different manner, appealed to the board of park commissioners protesting against the action of the architect, and was by them directed to reconstruct the work as required by the architect; that he also notified the architect and the board of park commissioners that the flue would not be watertight if constructed according to the amended plans and specifications; that he did reconstruct it in accordance therewith, and that the reasonable value of this work was $1,604.51. It is objected that the plaintiff cannot recover for this item for the reason that the flue as thus reconstructed was not watertight. The contract expressly provided that the work should be done “ to the satisfaction of the Commissioners of the Department of Public Parks and the architect appointed by them and in accordance with the drawings, details and directions given or which may be given by the architect and in conformity with the specifications.” The amended specifications require an excavation for the flue of sufficient width and depth to make it, when completed, of the size indicated on the plans, and further provided with reference to this flue as follows: “ Mason Work : “ Line up the sides of excavation with four inches of brick and cover the bottom of flue with not less than 4 inches of rough concrete, composed of 3 parts of broken stone, 1 part clean sharp — 229 — sand, and 1 part Portland cement, made smooth, ready to receive asphalt. After the asphalt has been applied build 12" brick walls on both sides of the flue, laid in mortar as specified, and carry up to height required for roof beams. “Pave the flue throughout with brick grouted in in cement mortar. “ Asphalt : “ Cover the entire inside of flue, prepared as specified, with inch of Seysel rock asphalt, or equally good and approved brand, applied hot, so put on as to absolutely cover all crevices and joints, and render the same impervious to water. “Generally: “ The work is all to be performed in a thorough and mechanical manner, and rendered thoroughly watertight, all to be subject to the approval of the architect.” The provisions of the original and amended specifications with reference to the flue being impervious to water and watertight were the same. The legal effect of this contract was that the contractor undertook to construct the flue in accordance with the plans and specifications, and he was to make it watertight so far as a construction in accordance with the plans and specifications would produce that result; but he did not guarantee the efficiency of the plans and specifications in this regard. (MacKnight Flintic Stone Co. v. Mayor, 160 N. Y. 80.) The specifications contain the following clause : “ Such details on a large scale or full size as may be necessary to more fully explain the general drawings will be furnished to the contractor at the proper time during the progress of the work. * * * “ The various drawings and this specification are intended to cover a complete and first class job in every respect. Anything omitted in' this specification and shown on the drawings, or vice versa, is to be done by the contractor without extra charge or expense.” It is contended on the part of the city that these provisions authorized the architect to change the plans and specifications by detailed plans, and that they are authority for the changes which he made. This contention is untenable for two reasons. In the ■first place it was not intended to authorize the change of either the specifications or plans by enlarged detail plans or drawings, but only — 230 — to make more clear what might otherwise be obscure, and, secondly, the architect was not authorized to make any change or alteration in the plans or specifications after the work had been done in accordance with the plans and specifications at the time of performing it. It is further contended that this was extra work, and that, inasmuch as it was provided in the contract that the contractor should make no claim for extra work unless the same was agreed upon •between the parties in writing, no recovery can be had therefor. That provision of the contract relates to work concededly not within the contract, and not to changes and alterations in the work intended to be covered by the agreement. Furthermore, it is not contended that the board of park commissioners did not have authority to contract for this work even if it were extra work; and the board itself which made the contract, having authorized and directed the work, would be estopped from contending that the plaintiff could not recover therefor because the contract required that an agreement in writing should be made concerning the same. The architect wrongfully insisted that the plaintiff had not performed .his contract with reference to the construction of the fine, not because he had not followed the plans and specifications, but because ■of the architect’s blunder in preparing plans and specifications that would not accomplish the object desired, to wit, a watertight flue. On this branch of the case the plaintiff was entitled to recover on the authority of Gearty v. Mayor (171 N. Y. 61). There is no basis for a distinction between that case and this. There, as here, the contract related to the performance of work for the park department, and the provisions of the specifications, so far as material, are almost identically the same, the only difference being that that ease related to a pavement and the engineer had supervision of the construction, and the word “ engineer ” appears in the specifications where the word “ architect ” appears in the case at bar. It follows, therefore, that the plaintiff made out a prwna facie •case for a recovery with reference to the cost of reconstructing this Hue and it was error to dismiss the complaint. In this view it ■becomes unnecessary to consider the sufficiency of the complaint or proof with reference to the other items of damages claimed in the second cause of action. — 231 — The judgment appealed from should be reversed and a new trial granted, with costs to appellant to abide the event. O’Brien and Hatch, JJ., concurred; Van Brunt, P. J., and Ingraham, J., dissented.