Millstone Granite Co. v. Dolan — 46 N.Y. St. Rep. 531

Majority

p. 531

The Millstone Granite Co., Resp’t, v. James F. Dolan, App’lt.

(New York Superior Court, General Term,

Filed May 2, 1892.)

Headnote

Contract—Construction.

Plaintiff agreed to do work for defendant agreeably to the drawings and' specifications made by the architect, and to furnish all the materials for completing the &ranite work for specification and plan figured on at its office. The plan and specification so figured on were only a part of the architect's drawings and specifications. Held, that plaintiff was not required by its contract to furnish all the granite work disclosed by such drawings and specifications, but only such as appeared on the plan and specification-figured on at its office.

p. 532

Appeal by defendant from judgment entered upon the report of a referee.

Early & Prendergast, for app’lt; Frank Bergen and Henry G. Atwater for resp’t.

The action is for the price of granite, worked, sold and delivered by plaintiff to defendant. A construction of the written contract will decide the dispute between the parties. By that the plaintiff agreed that they would work for the Twenty-second Armory building on trucks agreeably to the drawings and specifications made by John P. Lee, architect, and signed by the said parties and hereto annexed, in a good, substantial and workmanlike,manner, to the satisfaction and under the direction of the said John P. Lee, and also shall and will find and provide such good, proper and sufficient materials of all kind whatsoever as shall be proper and sufficient for the completing and finishing all the granite work for specifications and plans figured on at the office of this company at Millstone Point at this date, of said building mentioned in the specification, for the sum of $12,050.

The appellant contends that for the price named the plaintiff was to furnish all the granite work disclosed by the drawings and specifications of John P. Lee, architect. This is not correct, for, by the contract work 'upon the granite is to be done in accordance with such plans and specifications, but the granite work to be furnished was such as was described in specifications and plans figured on at the office of the company. In fact there had been such specifications and plans figured on at the office, and they were not the same as the drawings and specifications of Lee, being but a part of the latter. The figuring was upon four sheets of paper.

The evidence in the case .sustains this construction of the contract, and shows its reasonableness. There was in the contract made a reference to extra work when the granite had been partly delivered ; the defendant agreed in writing “ to pay for all extra over work that has not been called for in plans and specifications left at your office February 15th, 1889, at time of making contract, etc.”

The plaintiff fulfilled the contract to furnish granite according to the specification figured, and also furnished other granite work at request of defendant. The defendant contested plaintiff’s right to recover this extra granite, on the ground that the granite work was called for by the plans and specifications of John Lee. We have construed the contract otherwise. The plaintiff was entitled to recover upon the balance due under the contract, and for the extra work.

Judgment affirmed, with costs.

Sedgwick, Ch. J., Freedman and McAdam, JJ., concur.