Gearty v. Mayor of New York — 183 N.Y. 233

Majority

p. 233

James A. Gearty, Appellant, v. The Mayor, Aldermen and Commonalty of the City of New York, Respondent.

(Argued November 22, 1905;

decided December 5, 1905.)

Headnote

Evidence—Competency — Failure of Objection to Point Out Real Ground of Inadmissibility. In an action to recover a sum deducted from the contract price of certain work performed for a municipal corporation, as liquidated damages for delay in its completion, and also to recover damages suffered by reason of certain work being, as alleged, unlawfully and improperly required to be done a second time, the .admission in evidence'of a letter, written to the plaintiff by the secretary of the department of public works during the course of the work, containing statements to the effect that the' plaintiff was not doing the work in accordance with the terms of the contract, that it was being unnecessarily and unreasonably delayed, and that he was willfully violating the conditions of his contract, which letter had been withdrawn by a subsequent communication and was not offered in evidence for the purpose of showing notice, cannot he justified on the ground that it showed the manner of performance of the work, the statements therein being merely self-serving declarations made by officers of the defendant, ex parte, and in no way binding upon the plaintiff; and the effect of the error cannot he avoided on the ground that the plaintiff’s objection did not point out the real ground of its inadmissibility, where it appears that the court was advised of the purport of the evidence and what was sought to be proved by it, and, though the objection was placed upon the ground of irrelevancy, its iucompetency was clearly apparent.

Gearty v. Mayor, etc., of New York, 96 App. Div. 625 , reversed.

Appeal from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered June 28, 1904, affirming a judgment in favor of defendant entered upon a verdict and an order denying a motion for a new trial.

■ On May 18th, 1895, the plaintiff entered into a contract with the defendant to regulate, set curbstones and pave with granite block the roadway of Transverse road No. 4, crossing Central Park at 97tli street from Fifth avenue to Central Park West (8th avenue), in the city of New York. The contract, among other things, contained a provision that the pavement should he laid upon a foundation of concrete composed of one part of cement of a specified kind, two parts of clean

p. 234

sharp sand and five parts of broken stone. It further provided that the work should be completed on or before the expiration of 50 days from the time of commencement, and if not completed within that time the city should have the right to deduct $20 a day as liquidated damages for each day consumed by the work beyond the time fixed for completion. There Avere further provisions to the effect that the work should be done to the satisfaction of the engineer in charge of the work and that all defective Avork should be taken up and replaced. • „

The city claimed that certain portions of the' concrete did not conform to the contract specifications and compelled the plaintiff to take up and replace about 5,000 cubic yards thereof. The work made necessary by the removal of this alleged defective concrete, and the substitution of material of proper kind, extended the time of the completion of the contract beyond the 50 days fixed therefor.

The plaintiff claimed that the concrete furnished was of proper character and that the city unlawfully compelled him to remove the portions thereof in question. He further claimed that the time consumed iti doing the work beyond the period fixed in the contract Avas made necessary by such unlawful action on the part of the city in compelling him to remove the alleged defective portion of the concrete and do the work a "second time.

The city deducted from the contract price the sum of $20 for each of 22 days, being the length of time which it claimed the plaintiff had taken beyond the period fixed for the completion of the contract. The amount thus deducted was $440,

Two causes of action are set forth in the complaint. 1. To recover the sum of $440 alleged to have been unlaAvfully deducted by the defendant for the 22 days’ overtime. 2. To recover $10,000 for damages suffered by reason of certain work being unlawfully and improperly required to be done a second time.

Upon the trial the evidence was conflicting as to whether the concrete which the plaintiff Avas compelled to remove con

p. 235

formed to the specifications of the contract. The issues were submitted to the jury, which rendered a verdict in favor of the defendant upon both causes of action, and the judgment entered upon this verdict was unanimously affirmed at the Appellate Division.

L. Laflin Kellogg and Alfred C. Petté for appellant.

The trial court manifestly erred to the prejudice of the plaintiff in receiving in evidence the letter of the secretary of the department of public parks to the plaintiff, notifying him of the resolution of'the park board to the effect that the work under the contract was being delayed and not being done in accordance with the terms of the contract, and directing him to discontinue all work thereunder. (Larned v. Tillotson, 97 N. Y. 1 ; Thomas v. Gage, 141 N. Y. 506 Bank of British North America v. Delafield, 126 N. Y. 410 ; Ives v. Ellis, 169 N. Y. 85 ; Erben v. Lorillard, 19 N. Y. 299 ; Coleman v. People, 58 N. Y. 555 .)

John J. Delany, Corporation Counsel (Theodore Connoly and Terence Farley of counsel), for respondent.

The erroneous admission of evidence, which is harmless, is not a valid reason for disturbing a judgment. (Kennedy v. M., H. & F. Traction Co., 178 N. Y. 508 .) The objection to the admissibility in evidence of the letter from the park department was insufficient in that it did not point out specifically the real ground of its inadmissibility. (Carter v. N. Y. E. R. R. Co., 134 N. Y. 168 ; Szuchy v. H. C. & I. Co., 150 N. Y. 219 ; Butler v. M. & E. Pub. Co., 171 N. Y. 208 ; Keough v. A. & T. S. Co., 171 N. Y. 635 .) Assuming that the reception of the testimony was error, it was clearly harmless. (Downs v. N. Y. C. R. R. Co., 56 N. Y. 664 ; Ellwanger v. Fish, 60 N. Y. 651 ; Tenney v. Berger, 93 N. Y. 524 ; Thorn v. Turck, 94 N. Y. 90 ; Story v. W. M. M. B. A., 95 N. Y. 474 ; McGean v. M. R. Co., 117 N. Y. 219 ; West v. Van Tuyl, 119 N. Y. 620 ; Carman v. Pultz, 21 N. Y. 547 ; Reese v. Boese, 94 N. Y. 623 .)

The unanimous affirmance by the Appellate Division has foreclosed all questions upon this appeal, except those arising out of exceptions to rulings upon evidence and the charge of the trial court. Two such questions are presented by the appellant, but we deem it necessary to consider only one of them, and that relates to the admission in evidence, on behalf of the defendant, of a letter written during the course of the work, by the secretary of the defendant’s department of public works, to the plaintiff. This letter reads as follows:

“ I am directed to inform you of the adoption of the following resolution at a meeting of the board held this day:

1 Whereas, this department entered into a contract with James A. Gearty, under date of May 18th, 1895, for regulating, paving, etc., the roadway of Transverse Eoad Mo. 4, Central Park; and

‘“Whereas, it appears that the work under said contract, is being delayed and is not being done in accordance with the terms of said contract; therefore,

“ ‘ Resolved, That the Commissioners of the Department of Public Parks are of the opinion and do certify in writing that said work is unnecessarily and unreasonably delayed, and that said contractor is wilfully violating the conditions of said contract, and that said work is not being .done or progressing according to the terms of said contract.

“ ' Resolved, That the Secretary be directed to notify said contractor, pursuant to the provisions of said contract, to discontinue all work thereunder, and that the Commissioners of the Department of Public Parks will complete the work as therein provided.’ ”

When this letter was offered in evidence the counsel for the plaintiff objected to it and said : “ I fail to see its relevancy. That is an effort to take advantage under a peculiar clause of the contract which allows them to take away the work. Mo such notice has been stated. Mo such notice has been acted upon at the time we were discussing this- work.” The counsel for the defendant then said: “ It is to show the manner of the plaintiff’s performance. It is one of the issues here.”

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The court overruled the objection, saying, “It may have some bearing on the penalty they imposed,” and the defendant’s counsel took an exception.

There was a clause in the contract which, so far as material to this discussion, provided that if the commissioners of the park department should be of opinion that the contractor was not performing the work in compliance with the contract, they could notify him in writing to discontinue work thereunder and complete' the same themselves. This letter was evidently sent in pursuance of some design on the part of the commissioners to take advantage of this clause of the contract, but tlie record discloses that no such action was ever taken and that the plaintiff was permitted to complete the work.

It will be observed that the letter contains statements to the effect that the plaintiff was not doing the work in accordance with the terms of the contract; that it was being unnecessarily and unreasonably delayed, and that he was willfully violating the conditions of the contract. The letter was not offered in evidence for the purpose of showing notice and had in fact been withdrawn by a subsequent communication. Its admission in evidence was attempted to be justified on the ground that it showed the manner of performance, and the learned trial judge evidently so understood it, as he said it might have some bearing on the penalty imposed for failure to proceed with the work in the time specified by the contract. In this view of the case it is obvious that the statements in the letter were merely self-serving declarations made by officers of the defendant who assumed to characterize and determine the manner of plaintiff’s performance of the work under the contract. They were ex jparte statements in no way binding on the plaintiff and wei’e clearly inadmissible. (Bank of British North America v. Delafield, 126 N. Y. 410 ; Austin v. Bartlett, 178 N. Y. 310 ; Larned v. Tillotson, 97 N. Y. 1 ; Thomas v. Gage, 141 N. Y. 506 .)

The learned counsel for the respondent seeks to avoid' the effect of this error by claiming that the objection made by the plaintiff’s counsel did not point out to the court the real

p. 238

ground, of its inadmissibility. The colloquy which occurred between counsel and court at the time of the admission of the letter indicates quite clearly, we think, that the court was advised of the purport of the evidence and what was sought to be proved by it. While the objection was placed upon the ground of irrelevancy, its incompetency was clearly apparent. (M. Groh's s Sons v. Groh, 177 N. Y. 8 , 15.) Morcan we properly say that the evidence was harmless. The trial was before a jury and these statements coming from the officers of the city may have had considerable weight with the jury. The burden is on the respondent to show that the reception of the letter was harmless and this he has failed to do. (Foote v. Beecher, 78 N. Y. 155 ; Jefferson v. N. Y. E. R. R. Co., 132 N. Y. 483 , 486 ; People v. Strait, 154 N. Y. 165 , 171.)

The judgment should, therefore, be reversed and a new trial granted, with costs to abide the event.

Cullen, Ch. J., O’Brien and Bartlett, JJ., concur; Gray, Haight and Vann, JJ., dissent.

Judgment reversed, etc.

Cases cited

Learned v. Tillotson 97 N. Y. 1 N.Y. 1884-10-07 p. 235, p. 237
Thomas v. Gage 141 N. Y. 506 N.Y. 1894-03-06 p. 235, p. 237
Bank of British North America v. Delafield 126 N. Y. 410 N.Y. 1891-06-02 p. 235, p. 237
Ives v. Ellis 169 N. Y. 85 N.Y. 1901-12-17 p. 235
Erben v. Lorillard 19 N. Y. 299 N.Y. p. 235
Coleman v. People 58 N. Y. 555 N.Y. 1874-11-10 p. 235
Kennedy v. Mineola, Hempstead & Freeport Traction Co. 178 N. Y. 508 N.Y. 1904-05-31 p. 235
Carter v. New York Elevated Railroad 134 N. Y. 168 N.Y. 1892-06-14 p. 235
Szuchy v. Hillside Coal & Iron Co. 150 N. Y. 219 N.Y. 1896-10-06 p. 235
Butler v. Mail & Express Publishing Co. 171 N. Y. 208 N.Y. 1902-05-13 p. 235
Keough v. Albany & Troy Steamboat Co. 171 N. Y. 635 N.Y. 1902-04-18 p. 235
Downs v. New York Central Railroad 56 N. Y. 664 N.Y. 1874-05-26 p. 235
Tenney v. Berger 93 N. Y. 524 N.Y. 1883-10-23 p. 235
Thorne v. Turck 94 N. Y. 90 N.Y. 1883-11-20 p. 235
Story v. Williamsburgh Masonic Mutual Benefit Ass'n 95 N. Y. 474 N.Y. 1884-04-15 p. 235
McGean v. Manhattan Railway Co. 117 N. Y. 219 N.Y. 1889-11-26 p. 235
West v. Van Tuyl 119 N. Y. 620 N.Y. 1890-01-14 p. 235
Carman v. Pultz 21 N. Y. 547 N.Y. p. 235
Reese v. Boese 94 N. Y. 623 N.Y. 1883-11-20 p. 235
Austin v. Bartlett 178 N. Y. 310 N.Y. 1904-04-26 p. 237
M. Groh's Sons v. Groh 177 N. Y. 8 N.Y. 1903-12-08 at 15 p. 238
Foote v. Beecher 78 N. Y. 155 N.Y. 1879-09-16 p. 238
Jefferson v. New York Elevated Railroad 132 N. Y. 483 N.Y. 1892-04-26 at 486 p. 238
People v. Strait 154 N. Y. 165 N.Y. 1897-10-26 at 171 p. 238