Barber Asphalt Paving Co. v. City of New York

Dowling, J.: The contract between plaintiff and defendant was entered into on J uly 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 ten years,- and the percentage retained as security for ' full performance by the contractor was twenty per cent, whereof four per cent was to be returned to him on the expiration of the sixth-year from the acceptance of the work, and four 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 áre similar to those decided in Mack Paving Co. v. City of New York (142 App. Div. 702), 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. Ingraham, P. J., Laughlin, Clarke and Miller, JJ., concurred. Judgment and order reversed, new trial ordered, costs to appellant ' to abide event.