Harrison v. Village of New Brighton

This action was commenced on December 23, 1897, against the village of New Brighton, to recover the damages which the plaintiff claims to have sustained by virtue of a failure of the employés of the defendant to comply with the provisions of three separate contracts, by which the plaintiff’s assignors were to construct sewers in the village of New Brighton.

The provisions of the three contracts are similar. The specifications for the work made part of the contracts were composed of partly printed and partly typewritten" provisions, and it was provided that where the printed and typewritten specifications conflicted the typewritten specifications were to control. In the proposals for estimates it was provided that the bidders were to satisfy themselves as to the accuracy of the estimate of the engineer, and should not at any time dispute or complain of such statement or estimate of the engineer, nor assert that there was any misunderstanding in regard to the depth of the excavation to be made" or the nature or amount of the work to be done; and the bidders were also informed that no deviation from

It will be noticed that by the typewritten specifications, which were to control when inconsistent with the printed specifications, it was provided that “for location, depth of cutting, size of sewers, location

So far as the claims of the plaintiff were disallowed by the referee, it is not necessary on this appeal to consider them' as the plaintiff does not appeal. The defendant appeals from the judgment, claiming that the plaintiff is not entitled to recover at all, and it is necessary, therefore, to consider the various claims made by the plaintiff which were allowed by the referee and for which the plaintiff has recovered a judgment. The plaintiff, in his brief, divides these claims into four groups, and they will be considered in the order in which they are there •stated. The first group is for damages sustained by the plaintiff because of the rescission of a resolution of the defendant’s board of trustees changing the location of the sewer in Jewett avenue. This claim was disallowed by the referee, except the sum of $40.96 for freight upon certain pipes that were delivered upon the work. I do not think that the plaintiff was entitled to recover any portion of this claim. It is based upon a resolution of the board of trustees of the village, passed June 29, 1897, the contract having been executed on the 26th day of May, 1897. The only evidence of such a resolution is a statement in the minutes of the board of trustees that:

“A letter was received from P. H. Harrison & Sons asking permission to •change the sewer line on Jewett avenue, in the centre of said street, to a point 6% feet from the curb line; and, on motion of Mr. Brantingham, the motion was carried.”

The letter upon which this was based was not produced, but the plaintiff testified that the substance of the letter was that the contractors petition the board of trustees to change the line of the sewer to a point within 6Ji inches from the curb line, the contractors agreeing to put in a number of house connections 6 or 8 feet in length, if they would make this concession. It seems to me that the passage of ■such a resolution created no contract which prevented the board of trustees, if they had power to pass it, from rescinding it before any work was done under it. The alleged consideration for what was called a contract was a proposal of the contractors to put in a number •of house connections, but it was not a part of the contract to connect houses upon this avenue with the sewer, and it was not the work of the village to make such connections, nor were any specific connections mentioned. The defendant could not have compelled the contractors to make any particular connections. The request was to

The second group of claims specified by the plaintiff are for damages suffered because of the neglect of the defendant’s engineer to-furnish preliminary and working grades or grade indications. For these the referee allowed the sum of $320.33. The record is very voluminous, and it is difficult to pick out the testimony which relates to this claim, mixed, as it is, with the testimony in relation to other claims of the plaintiff. The plans which were made a part of the contract contain a statement of the depth of the excavations from the surface of the ground, and by the contract the contractors were to construct this sewer according to these plans and specifications. The plans and specifications showing the depth of the excavation required, and it being provided in the specifications that these plans were to control the depth of the excavations, certainly before there could be any liability for a failure to give the specific instructions as to the depth of the excavation, there must be a clear demand upon the engineer for specific instructions as to a specific place. The evidence in regard to-any demand on the enginer is indefinite and insufficient, I think, to sustain a finding that the engineer ever refused or declined to furnish the necessary stakes or marks for line grades and cuttings. The testimony of the plaintiff was simply that stakes, with grade marks on them, were set at some points, which do not seem to be specified, before the plaintiff commenced the work, and some were set while the work was in- progress; that the witness had asked the engineer for them repeatedly while the work was in progress, but did not get them.. There was here no evidence of a request for information as to the depth of the excavation at any particular place. The plaintiff’s foreman-testified that Major Barrett was the engineer in charge of the work;; that no stakes had been set showing the lines on which the cuttings, were to be made; that Mr. Randall, who seems to have been one of-the contractors, laid out the line before the work was started according to the plans and specifications; that the witness asked Maj. Barrett

The third claim is stated to be for the damages suffered because of the neglect of the defendant’s engineer to furnish grades for the laying of pipe and his refusal to permit the laying of pipe. For this claim the plaintiff was allowed $6,467.75. These awards seem to be based upon a disagreement between the engineer and the plaintiff as to whether the excavation was in a condition for the laying of the pipes, whether the contractors had excavated to the proper depth as required by the plans and specifications, and whether the village is responsible for the cost to the contractor of his completing the work according to the instructions of the engineer, and his decision as to what was required by the contract. What I have said in relation to |he evidence as to giving the grades in relation to the second group of claims applies equally to this claim. The evidence as to the failure of the engineer to give these grades when demanded is insufficient, so far as I can see, to base any claim that there was any neglect of the engineer to comply with the provisions of this contract. A large part of this claim is based upon the cost of re-excavating because of the caving in of the trenches, and the plaintiff claims that this caving in was caused by a refusal of the engineer to allow the defendant to lay its pipes when they had excavated the trench as required by the plans and specifications. It is clear that a large portion of the damage claimed was caused by caving in because the contractors excavated a trench of a much greater length than 150 feet, in violation of the contract. The evidence is undisputed that this excavation was continued until the trench was open for about 800 feet. The learned referee seems to have been of the opinion that the provision of the contract, that the excavation should not at any one time exceed 150 feet, was waived. There is no evidence that I can find that would justify a finding that the defendant waived any provision of the contract. The contract provided that the contractor would shore up the sides of the excavation so as to prevent this caving in that occurred. The caving in was thus caused by a failure by the plaintiff to comply with these two provisions of the contract, and no neglect of the engineer to enforce these pro

The last claim allowed by the referee was for damages suffered by the contractors through being required to open out a tunnel which had theretofore been made pursuant to the directions from the engineer. The printed specifications provided that no tunneling should be allowed except written permission be previously obtained from the village engineer. The typewritten specifications provided that no tunneling- should be permitted unless otherwise ordered by the engineer. ■ It is conceded -that no written permission was given to construct this sewer through a tunnel.. The evidence is that there was a dispute about using an excavating machine at this point. A witness for the plaintiff testified that the engineer said that they could construct a tunnel at the locality. After the tunnel had been made he said it would have to be higher, and after they made it higher he compelled them to make it an open-cut. For the additional expense of opening this cut the plaintiff was allowed the sum of $100. I do not think this claim was properly allowed. There is no evidence that I can find that there was any additional expense by reason of the fact that the plaintiff first made a tunnel and was afterwards compelled to open it up so as to make an open-cut. By the contract the work had to be done to the satisfaction of the engineer, and the plaintiff in making a contract in this form assumed the obligation to do the work as required by him, and within reasonable limits, the carrying out of his instructions imposed no liability upon the defendant. The typewritten provision of the contract is that there should be no tunneling except with the permission of the engineer, and that was supplemented by the printed part of the contract which required that that permission should be in writing. There was certainly no inconsistency between these two provisions. Both contemplated action by the engineer, and read together, the permission was required to be in writing. The provision was undoubtedly inserted to obviate just what happened, so that no liability should be predicated upon a verbal permission of the engineer when the giving of such permission was denied. My conclusion upon all this evidence is that the finding of the referee was not sustained by the evidence.

There was, however, another question presented which also stands in the way of any recovery by the plaintiff. The cause of action sought to be enforced is one that existed at the time the action was commenced, which was before the consolidation of the village of New Brighton as' a part of the city of New York, and if, therefore, this money sought to

“Such a provision as to work of this character is usual and reasonable, for, as the municipal authorities have no right to make such improvements at the expense of the taxpayers generally, it follows, first, that no money is raised by general taxation that is available for the payment of such expenses; and, second, that it is necessary to make the avails of the special assessment meet the obligations of the city under the contract. All of this known to the contractor when he makes his bid and enters into the contract, and presumably he has provided suitable compensation to himself for the loss of the use of the sums due under his contract until a reasonable time shall have elapsed in which to levy the assessment and make collection.”

The power of the trustees of the village is regulated by the act incorporating it. Chapter 819, p. 1794, Laws 1866. By subdivision 3 of section 1 of title 3 of that act (page 1804) the trustees were given power to construct sewers, culverts and drains; and by the twentieth subdivision of that section, power to audit all claims against the village of New Brighton. By title 4 of the act (page 1809) the trustees were given power, whenever in their opinion the whole or a part of the expenses of any improvement they make in the village (except the opening, widening, or altering of any road, avenue, or street) ought to be borne by a particular part or by particular inhabitants of the village, to charge such expense, or such part thereof as they may deem just, upon a particular part or upon particular inhabitants of the village, and may make an assessment for that purpose. By title 5, p. 1816, § 1, the board of trustees were given power to raise annually by taxation upon the taxable inhabitants of the village, such sum of money as they should deem proper, the same to be expended in the payment of the expenses of the corporation for roads and improvements and to carry into effect the several powers and privileges granted and conferred by the act. By title 6, p. 1830," the board of trustees were expressly prohibited" from borrowing money, c>r from issuing any bonds.

Now, I think that these claims of the plaintiff, if valid, were part of the cost of constructing this sewer. They are sums of money claimed to be due to the plaintiff as incident to the construction of the sewer. The trustees were prohibited from incurring any indebtedness, and all obligations except as provided for in the act are declared null and void. These contractors assumed to do the work and agreed to accept payments provided for doing the work from the moneys when realized from collection of the assessment to be imposed by the trustees of the village for the improvement. Certainly, before they can recover any money or enforce any payment due on account of the construction of this sewer, they were required to show either that an assessment had been levied and money received therefor, or that the trustees of the village had in some way put it out of their power to levy an assessment, and thus bring the case within Weston v. City of Syracuse, supra. It was there said:

“First, that no money is raised by general taxation that is available for the payment of such expenses; and, second, that it is necessary to make the avails of the special assessment meet the obligations of the city under the contract All this is known to the contractor when he makes his bid and enters into the contract, and presumably he has provided suitable compensation to himself for the loss of the use of the sums due under his contract until a reasonable time shall have elapsed in which to levy the assessment and make the collection. * * * “If he finds, as in the case of Ready v. Mayor, etc., supra, that the city has not proceeded with reasonable diligence to collect the assessment and turn over the proceeds to him, he may and should proceed by mandamus to compel such action on its part. But where a mu

nicipality disables itself from performing the contract by such action on its part and makes void and, therefore, uncollectible an assessment, for the purpose of providing compensation, or refuses to perform the contract on its part, as in Reilly v. City of Albany, 112 N. X. 30, 19 N. E. 508 , then an action against the city for the damages sustained by reason of its failure to perform the contract on its part may be maintained.”

It is claimed, however, that the allegation in the answer that the plaintiff had been paid in full the amount due under his contract would be used as an admission that an assessment had been levied and paid, but as the village had power to raise money for the purpose of paying the amount due to the plaintiff under the contract by means of temporary obligations and which would be reimbursed by the collection of the assessment for the improvement, payment of the amount conceded to be due cannot make an allegation that the condition under which the plaintiff was entitled to the money had been performed, so as to put the village in default for the payment of this sum which was claimed as a part of the expense of the construction of the sewer unnecessary. The plaintiff, to be entitled to recover, was required to allege and prove that the amount which he sought to recover was due at the time of the commencement of the action. There was no allegation in the complaint that the assessment had been collected or that defendant was unable to impose such an assessment, and no such proof was offered upon the trial. For this reason, I think that the whole cause of action fails and that the complaint should have been dismissed. Upon the whole case, I think the plaintiff has failed to prove any cause of action against the defendant.

It follows that the judgment apnealed from should be reversed and a new trial ordered, with costs to the appellant to abide the event. All concur.