Randolph v. Mayor

J. F. Dalt, J. The defendants’ counter-claim for sewer pipe furnished plaintiff in the construction of the sewer was admitted and allowed on the trial and deducted from plaintiff’s claim and judgment given for the balance. Two other counter-claims, one for liens filed by persons furnishing mate [76] rials to the contractors, and one for the moneys retained as security for repairing, were not allowed by the referee, for the reason, it is presumed, that they were not proven. No reply was ever served by plaintiff to the defendant’s answer setting up those counter-claims. This was an admission that they were due and owing by plaintiff, and defendants might have availed themselves of such admission; they did not, but offered on the trial proof in support of each item of set-off or recoupment. If they failed to support their claims by the proof offered they lose the benefit of the admission (Campbell agt. Genet, 2 Hill, 295). The rule laid down in that case is a reasonable one. If defendants intend to rely upon the admission made by the failure to serve a reply, they should rest upon it at the trial, and plaintiff having notice of their intention may. then apply to the court for leave to serve a reply, which leave the court has power to grant. But if they waive the admission and go into proof of their counter-claim, it seems only just to give such judgment as the proof may warrant. A perusal of the case satisfies me that the referee did not err in rejecting those two counter-claims. I. The contract with the city provided, that the contractors were to furnish the commissioners of public works with satisfactory evidence, that all persons who give said commissioners before or within ten days after the completion of the work written notice, that a balance for work or material or compensation for injury or damage is due and unpaid, have been fully paid or secured therefor. There is no proof whatever that the alleged claimants, Gal-well and Hogan, ever gave such notice to the commissioner, but on the contrary, the proof shows that such notices of lien were filed with the finance department, and not filed there until some months after the completion of the contract. II. There is no proof that the city was compelled to repair the pavement of the street, nor that they had any right to retain beyond June 9, 1872, the time specified in the con [77] tract, the sum of $435.60, which they kept back pursuant to its terms as security for the proper relaying of the pavement. The referee erred, however, in rejecting the other counterclaim of defendants, viz., moneys paid out for inspectors3 fees, the contractors having failed to complete the work within the time specified in the contract. I do not consider that defendants are entitled to the full amount claimed by them, because I am of opinion that no charge should be made for inspectors’ pay before the date of the actual commencement of the work. The contractors were required by the terms of the contract to complete the work within ninety days after the day the commissioner of public works should designate for commencing it, and in case of default the city was to deduct from the contract price the sum paid for inspectors’ wages, for each and every day the aggregate time of all the inspectors on the work appointed by the commissioner of public works might exceed the stipulated time for its completion. No notice was ever given to the contractors by the commissioner to commence the work, and no day was designated by him for that purpose. The contractors applied to the commissioner for such designation, but received no orders. They began the work at their own risk, on June 8, 1871, sixteen days after the contract was signed. They completed it in 174 days, which, deducting Sundays and holidays, and ten days extra time, all of which were allowed them, made about 137 days altogether, or forty-seven days beyond the time fixed by the contract. As no time was designated by the commissioner for commencing the work, there can be no other data for fixing the period of time from which the ninety days were to be computed, except the day of the actual commencement of the work, but an effort was made by defendants to show a designation of an earlier date. A witness for defendants, Stevenson Fowler, testified that he was engineer in charge of the sewer department of the public works; that an inspector was appointed by an [78] appointment in writing, filed in the department of public works, and was placed on the work the same day that the contract was executed, and that that was the designation by the commissioner of public works of the time of commencement of the work and that there was no other designation except that. He was asked if it were customary, in jobs of this nature, to give contractors any further notice to commence work than by placing inspectors on the work. This was objected to by plaintiffs and ruled out by the referee, to which defendants excepted. I do not think the question was proper. The contract dated May 23, 1871, provided that the contractors should commence the work on such day as the commissioner should designate; that it was' to be prosecuted at such times, and in such parts of the street on the line of the work, and with such force as the commissioner might from time to time during the progress of the work determine, at each of which points an inspector would be placed to supervise the same; that the aggregate time of all the inspectors so employed, would be the time with which the time stipulated for the' completion of the work would be compared. These provisions indicate clearly that the day for the commencement of the work is to be fixed by some notice to the contractor, other than the placing of an inspector at some ■ particular point of the street where the work is to be performed. An inspector of the work can hardly be said to be placed on the work until the work is commenced or a time is designated for its commencement. If the only notice to the contractors is to be the placing of an inspector on the street, it involves the necessity of a daily patrol of the locality by the contractor to ascertain whether an inspector is placed there. By what external marks and signs an inspector is to be recognized among the other citizens who appear on the streets, by the contractors, we are not informed. It is not shown that the contractors knew the inspector or how he was .to be identified, when he appeared at the place of work. The work itself was to be [79] commenced in sections at any point the commissioner might designate, and consisted in building three sewers in One Hundred and Ninth street and Fourth avenue, and between First and Third avenues, emptying into the First avenue sewer; and between Third and Lexington avenue, emptying into the Third avenue s.ewer; and one between Lexington and Fourth avenue sewer, emptying into Fourth avenue sewer. The extent of street in a straight line in which these sewers were to be laid was about half a mile, at any point at which the work was.to be begun, as directed by the commissioner. A custom or usage of the department to designate the point at which, and the day on which the work was to begin, by placing an inspector at each point, amounts in effect to. no notice at all, and proof of such custom without offering to show that the contractor knew the inspector, or that if was customary to file in the department of public works a designation of the point at which the work was to begin, and that the contractors had knowledge of the custom, would be insufficient to charge the contractors in the face of the express provisions of the contract, which plainly indicate a specific designation to be made by the commissioner, and as plainly indicate that the inspector is to be placed on the work after such designation is made, and not as the notice or designation itself. But even excluding the time between the date of the contract and the actual commencement of the work, the contractors exceeded the ninety days allowed by the contract. The contractors waived a designation by the commissioner of public works, and commenced the work on June the eighth. But this did not relieve them from the obligation to complete the work within the time specified in the contract, any more than it relieved them from the performance of their other obligations. The judgment should be reversed and a new trial should be granted, with costs to abide events. On the second trial the jury found in favor of the plaintiff for the full amount claimed, and no appeal therefrom was taken.