T. J. W. Corp. v. Board of Higher Education

Townley, J. Plaintiff brought this action to recover the sum of $4,880 allegedly due for extra work performed in connection with a contract between plaintiff and the board of higher education of the city of New York. It was alleged that $13,794 had already been paid on account and that the balance named was due and owing. The defendant counterclaimed to recover the amount already paid on the ground that it was extra compensation and a gratuity and, therefore, illegal and void under article 3, section 28, of the New York State Constitution. The claim arises out of the construction of Hunter College Instruction Unit No. 1. The plans provided that this building was to rest upon concrete piers starting at firm rock and extending to a fixed elevation. The elevation was never changed and the length of the piers depended upon the elevation at which firm rock was found. Under the contract, as we interpret it, plaintiff took the risk of resting the piers on firm rock wherever found, no matter how deep below the surface it had to go to find such rock. There was annexed to the contract a set of drawings. The approximate natural grade was given on three of these drawings as elevation 113. On four other drawings the approximate natural grade was indicated without any stated elevation. It was specifically stated in the contract that “ Any information obtained from the boring records or any information given on the drawings as to the elevations of the existing grades or the elevations of the underlying rock is approximate only, is not guaranteed and does not form part of the contract.” Before making its bid, plaintiff examined a boring plan which was received in evidence. The borings indicated that rock had been found approximately four feet below the existing grade of 113. This boring plan, however, contained the following statement in large print: “ NOTE: THESE RECORDS DO NOT FORM PART OF THE CONTRACT.” Nevertheless, plaintiff claims that it had the right to assume before bidding that the rock would be found at elevation 109 because the boring plan showed rock to be approximately four feet below the existing grade. Rock was actually found at elevation 104 which was a depth of three or four feet below the actual ground elevation [407] of 107. The concrete piers were, therefore, constructed from elevation 104 up to the grade fixed in the contract. When the difference in elevation was discovered, plaintiff put in a claim for extra work on the theory that the portion of the piers between elevations 107 and 113 was not called for in the contract. This claim must rest upon the proposition that the elevation of existing grades and the elevation of the underlying rock as given in the boring plan and in three of the contract drawings marked out the limits of the work which plaintiff was required to do under the contract. It seems perfectly clear to us that the contract was explicit in stating that the elevations were approximate only, were not guaranteed and were not even part of the contract. Furthermore, the bidders were directed by other provisions to “ examine the site and form their own conclusions as to the exact elevations of the existing grades, the exact elevations of the ground water, the exact formation and character of the underlying rock and all other existing soil conditions.” Plaintiff was also required to “ accept the site as it stands ” and the soil conditions as they “ actually exist.” Plaintiff also' agreed that it “ shall make no claims, nor shall any claims be considered or allowed for extraordinary site or soil conditions,” that it had “ verified all information given in the specifications or shown on the drawings,” that it had made its “ own estimate of the facilities and difficulties attending the execution ” of the work, that its bid was based on its own investigations, and that it had allowed sums sufficient to provide for or against any and all contingencies not otherwise provided for. We find no fraud or misrepresentation by the board of higher education of the city of New York in the letting of this contract and, indeed, none is even asserted by plaintiff. This type of claim has already been passed on in this State. For instance, in Foundation Co. v. State of New York (233 N. Y. 177) plaintiff argued that the elevation of the underlying work shown on a boring plan was a representation and that it was entitled to recover as for extra work because rock was found at a much lower elevation. The court said: “ If, however, notwithstanding the agreement as to honest mistake, damages might be recovered from the State for misrepresentations, upon which the bidder might rely, the boring sheet was not such a representation. It formed no part of the plans upon which the contract was based. It was not prepared or used for that purpose. It was an independent bit of information or supposed information in the possession of the State, to which the bidder resorted in making the investigations which it was required to make. If it relied upon this paper, it did so at its own risk.” [408] Furthermore, there is no evidence on which the issue whether the representation was made in good faith could be left to the jury because the representation was not incorporated in the contract by specific provision. Furthermore, there is not a scintilla of evidence to put the good faith of the board of higher education in issue. It is immaterial how the original survey from which the elevations were taken was made or why it was made. Certainly, there was no representation as to either the competency of the original surveyors or the purpose for which that survey was made. There being thus no justification for the allowance of the claim for extra work, the trial justice was warranted in dismissing the complaint and directing judgment on the counterclaim. The Court of Appeals has said in Weston v. State of New York (262 N. Y. 46) that “ extra compensation is compensation over and above that fixed by contract for the work agreed to be done. It would, either in a legal or equitable sense, be in the nature of a gratuity.” Extra compensation which has been paid by the State may be recovered either on the theory of mistake of fact as in Ball v. Shepard (202 N. Y. 247) or under a mistake of law as in New York City Employees’ Retirement System v. Eliot (267 N. Y. 193). In the latter case the Court of Appeals said: “ While it is true that it is the general rule that money paid under a mistake of law may not be recovered back, that rule, in certain instances at least, has been held not applicable to payments of public or trust funds by agents of municipalities. * * * The general rule as to payments made by public officers under a mistake of law is stated by text writers as follows: ‘ Payments of public money made by officials made under a mistake of law may be recovered.’ (3 Wilhston on Contracts, § 1590.) ” The judgment appealed from should be affirmed, with costs. Martin, P. J., O’Malley and Untermyer, JJ., concur; Glennon, J., dissents and votes to reverse and grant a new trial.