Donovan v. City of New York

Headnote

Donovan v. City of New York, 179 App. Div. 909 , affirmed.

Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the second judicial department, entered July 6, 1917, unanimously affirming a judgment in favor of defendant. entered upon a dismissal of the complaint by the court at a Trial Term in an action to recover for alleged breach of contract. Plaintiff entered into a contract with defendant to grade Lyman avenue in the borough of Richmond. He was to be paid seventy-five cents a cubic yard for excavating and a similar amount for filling. The line of the street crossed a bog or swamp and plaintiff alleged that he was compelled to dump 6,688 cubic yards of filling in order to obtain a solid foundation for the street. He sought in this action to recover the contract price for the amount of filling and for the amount of bog displaced thereby. The answer, besides putting in issue the material allegations of the complaint, plead as affirmative defenses: (1) Payment; (2) the finality and conclusiveness

of the final certificate and the effect of the general release, and (3) that' the contract, if given the construction sought to be placed upon it by the plaintiff, is ultra vires and void.