In re Houghton

Headnote

Contract for constructing sewer — when the contractor must pay the damages occasioned to gas-pipes.

Appeal by tbe petitioners from an order made at Special Term denying the prayer of the petition to vacate an assessment.

The court, at General Term, said : “On this appeal but one objection to the validity of the assessment is urged, and that is, that there is included in it the sum of $4,334, for certain damage to the pipes or mams of the Harlem Gas Light Company, and the objection rests upon the following provision in the contract for the construction of the sewer :

“ ‘All loss or damage arising out of the nature of the work to be done under this agreement, or from any unforeseen or unusual obstruction or difficulties which may be encountered in the prosecution of the same, or from the action of the elements, shall be sustained by the contractor aforesaid.’

“ This covenant, as a matter of construction, necessarily imposes upon the contractor the payment of any damage to the pipes or mains done by the work or resulting from it, because their existence could have been ascertained, and, it must be presumed from the nature of the covenant, was understood and regarded as an obstacle arising out of the nature of the work, and by which loss or damage might arise. Indeed, the agreement extends further, because it covers unforeseen or unusual obstructions or difficulties which might be encountered in the prosecution of the work to be done under the contract. The allowance complained of must have arisen from the damage done in the construction of the sewer, and was at variance with the plain terms of the con

tract by which such damage was to be borne by the contractor. The view taken of the contract by the learned counsel for the corporation is erroneous. He seems to think that the contractor bound himself to do no more than to be responsible for all loss or damage which he might do, and to make no claim against the city for loss or damage which he might sustain by the unforeseen and unusual difficulty of the work. This is not, as suggested, a correct view of the obligation assumed. The city makes the contract with reference to existing things and unforeseen difficulties, and not only covers the charge for extra work which might be presented by the contractor arising from them, but also claims which might, by his performance of the work, be made upon it for damage doné. He has, as suggested, the opportunity to learn of the existing things, such as pipes or mains for gas, on the line of the improvement, and to protect himself against unforeseen difficulties by demanding in limine sufficient indemnity. For these reasons it appears that the allowance objected to should not have been included in the assessment.”