MacArthur Bros. v. City of New York

Headnote

MacArthur Bros. Co. v. City of New York, 177 App. Div. 725 , affirmed,

Appeal, by permission, from a judgment entered May 14, 1917, upon an order of the Appellate Division of the Supreme Court in the first judicial department, overruling plaintiffs’ exceptions, ordered to be heard in the first instance by the Appellate Division, denying a motion for a new trial and directing judgment in favor of defendant upon the verdict directed by the trial court. The plaintiffs contracted with the city of New York through the aqueduct commissioners to construct the Cross river reservoir in Westchester county. They proceeded with their work, and payments were made upon the certificate of the engineer from time to time until, in August, 1908, plaintiffs received a draft by the comptroller upon the chamberlain of the city of New York for the sum of $157,514.67, which was stated in the draft to be “ for and in full payment of contract No. 13,149, construction of the Cross river reservoir, reservoir N in towns of Bedford, Lewdsborough and Poundridge, Westchester county. Voucher received.” Thereafter this action was brought against the city, in which action are included fifteen claims for different causes of action. The action was brought on for trial, and certain of the claims dismissed pending the trial. Thereafter motions for a directed verdict were made by both parties, whereupon the court took the papers and afterwards dismissed the complaint. The defendant contended that plaintiffs’ receipt of the final payment of $157,514 operated to release all other claims under article XXIX of the contract, which read as follows: “ The acceptance by the contractor of the last payment aforesaid shall operate as and shall be a release to the City, the” Commissioners, and each of them, and their agents, from all claim and

liability to the contractor for anything done or furnished for or relating to the work, or for any act or neglect of the City or any person relating to or affecting the work, except the claim against the City for the remainder, if any there be, of the amounts kept or retained as provided by Article XXIII.” It was not claimed that the causes of action in question were within the exception.