Moynahan v. Birkett

Order affirmed, with $10 costs, on the opinion of special term.

All concur.

The opinion of Mr. Justice Bartlett at special term is as follows:

On February 1, 1893, the board of supervisors of Kings county entered into a contract with James W. Birkett, whereby Mr. Birkett agreed to furnish certain materials and do certain work at the county farm, at King’s Park, Long Island, at prices which were specified in the body of the contract. The law providing for the establishment of the county farm requires the board of supervisors to advertise for proposals for the erection of the buildings and for the other improvements there, and to award the contract to the lowest responsible bidder or bidders. Laws 1884, c. 230, § 3. This provision was obeyed in reference to Mr. Birkett’s contract, so far as the work was concerned which was mentioned in the contract itself, as distinguished from the specifications. The contract, however, refers to two sets of specifications. One set is known as “ General Specifications, B,” and is expressly made a part of the agreement. Clause 37 of specifications B relates to extra work. It declares, in the first place, that proposals and contracts must be understood to include and cover in full all the several parts and appurtenances of such structure so as to make a complete and finished work on the location established for the same, and for its complete use and operation, precluding all claims for extra work; but it goes on to provide that additional payments may become due and payable for extra work done in obtaining stable foundation, or for materials required to form necessary artificial foundations, or on account of incidental or supplemental modification of the plans, locations and grades ordered by the proper authority. “ For such extra work,” says this clause, “the contractor will be paid the following prices: For earth excavation, 25 cents per cubic yard. For excavation of foundations, including all necessary draining and bailing, 45 cents per cubic yard. For spruce or hemlock sheathing and shoring which may be ordered left in the ground, thirty-five dollars per thousand feet, board measure. For each cubic yard of rubble masonry, eight dollars. For each cubic yard of concrete, five dollars. For each cubic yard of brick

The present action is a taxpayer’s suit brought to prevent the payment to Mr. Birkett of three items which he claims under the contract in question. These items are $17,100 for 38,000 cubic yards of sewer trenching; $32,725 for 935,000 feet of sheathing, and $25,401.42 for 12,829 square yards of granite pavement. Mr. Birkett asserts that sewer trenching is the same thing as the excavation of foundations mentioned in clause 37 of specifications B, and that the sheathing is covered by the same clause. Assuming that he is right, the objection still remains that the board of supervisors undertook to make this part of the contract without reference to the statutory requirement, that the work should go to the lowest responsible bidder. Their action in so doing was in disregard of the law, as it seems to me, and hence he cannot be entitled to payment for the additional work mentioned in these two items at the rates fixed in clause 37. In reference to the item of granite pavement, the case is different. Gutters were mentioned in the main body of the contract, and Mr. Birkett’s affidavit shows that the granite pavement was merely additional guttering, which proved necessary, and for which he charges at the same rate as he bid. The specifications declared that the schedule of quantities upon which the bids were based were approximate—as near as could be determined in advance. The agreement of the contractor was to do the whole work of regulating, grading, curbing, guttering, and macadamizing the roads at the county farm. As in the case of Sullivan v. President, etc., Vil. of Sing Sing, 122 N. Y. 389 ; 33 St. Rep. 722 , the quantities mentioned in the contract were only the estimates of the municipal authorities, and, if more ■material of the same sort was needed in any instance, the con