Powers v. City of Yonkers — 8 N.Y. St. Rep. 906

Majority

p. 906

JOHN POWERS, Resp’t, v. THE CITY OF YONKERS, impleaded with others, App’lts.

Headnote

Liability of city for work done—When failure to perform work WITHIN TIME FIXED EXCUSED.

Appeal from a judgment in favor of plaintiff entered at the Westchester special term.

Joseph F. Daly, for app’lts; R. E. & A. J. Prime & Burns, for resp’t.

The agreement upon th'e part of the contractor to complete the work within the fixed time is fully explained. There were difficulties in the way of a speedy execution of the agreement in consequence of claims made that the proposed work interfered with private rights, and the time was extended not only by actual permission but by the giving of certificates for' work long after the time to complete had passed.

The answer set up no improper execution beyond the fact that the work was not actively continued. The city rescinded the contract only upon the ground

p. 907

that the work did not progress to a speedy completion. The proof fails to sustain this as there was only some $60 worth of work to be done, and this was allowed to the city out of the contract price. There was no issue made as to the existence of the money with which to pay the contractor in the city treasury. Neither could the city avoid payment when it appeared that the methods provided for raising the money had not been used. There was no averment of defective work or materials in the answer.

The evidence tending to show defects was properly stricken out, as not within the issue made.

The judgment should therefore be affirmed with costs.

Pratt, J., concurs; Dykman, J., not sitting.