The plaintiff's testator was the assignee of a claim of one Benjamin J. Carr, Junior, arising under a contract made between him and the city of New York in 1889, for regulating and grading Claremont avenue from 122d street to 127th street. This action has been several times tried and was before this court on a former appeal. Although numerous questions were presented upon the argument and by the briefs of counsel, yet, in view of our previous decision in this case, but a single question is presented which we deem it necessary to consider at this time. The question we shall consider arises under the second cause of action stated in the complaint, by which the plaintiff seeks to recover the damages sustained by the original contractor by reason of his having been required by the defendant to perform a large amount of unnecessary work in the fulfillment of his contract.
The contention of the plaintiff is that this loss was occasioned by the action of the defendant's officers and employees in giving the contractor an incorrect grade of the street and then compelling him to conform the street to the grade as thus given, although he at the time insisted that it was wrong and objected to it as inaccurate. The provision of the contract relied upon by the defendant to exempt it from such liability in effect provides that a city surveyor, at the request of the contractor, will be directed to designate and fix grades for his guidance during the progress of the work without charge, provided that the city shall not be liable for any delay or any errors of such surveyor in giving such grades, and the surveyor shall be considered as the agent of the contractor so far as the giving of such grade is concerned, and not as the agent of the city. *Page 448
It is quite evident under this provision of the contract that if the contractor requested the city surveyor to designate and fix the grades the latter would be regarded as his agent, and the city would not be liable for any delays or errors of such surveyor. So, also, if, without objection, the contractor used the grades thus given, thereby acquiescing in and ratifying the surveyor's action, and accepting him as his agent within the terms of the contract, the city would not be liable, and we so held in the former decision of this case (170 N.Y. 219). But we also held that the contractor was entitled to recover for losses suffered in grading this street caused by the errors of the city surveyor in fixing the center line, where it was done by the city without the request or acquiescence of the contractor, and the contractor, afterwards distrusting its accuracy, sought to have it properly corrected, but failed, and finally proceeded with the work on that line as he was directed to do by the superintendent of streets.
When our former decision was rendered there was evidence tending to show that that was the situation so far as the center line established by the city surveyor was concerned, and it was held that the loss sustained by the contractor, due to the inaccurate line, was a proper charge against the defendant and might be recovered. It was then said: "It cannot be reasonably said that under this state of facts the contractor had, by acquiescence, made the city surveyor his agent. On the contrary, the contractor was reasonably alert to discover the correct center line, and followed the one furnished him, which he had been advised by his own surveyor was inaccurate, only when the superintendent of street improvements, after being fully advised as to all the facts, ordered him to do so." As the evidence then stood, the loss sustained by the contractor on account of the mistakes as to the grades other than as to the center line, was not recoverable, as there was then no sufficient evidence to show that the contractor had, after objection by him, proceeded with the work in accordance with such grades under compulsion or the positive direction of the city authorities. Upon the last trial, however, the evidence in that *Page 449 respect was changed, as the contractor then not only testified that he did not request the city surveyor to give him either stakes, lines or grades, but also that after discovering the inaccuracy of the grade furnished by the city surveyor in other respects, as well as to the center line, he saw the superintendent of street improvements, called his attention to it and requested him to look at the discrepancies in those respects and to the defects in the lines and grade. To this request the superintendent replied that he could do nothing in the matter, but that the letter he wrote, in which he said, "you will proceed with your work * * * in accordance with the grade lines and stakes as given by Mr. Slator, surveyor in charge," was specific, and that the plaintiff would have to follow the grades and lines as given by the engineer in charge. This evidence was corroborated by the witness Burke, who testified that he was present upon the work when the defendant's contract with the original contractor was discussed; that the contractor told the superintendent that there had been a mistake made by Slator, and the superintendent replied that he would not get out of his wagon and examine those things, but that he should obey the orders of Mr. Slator, the engineer in charge of the work, and work by his stakes only. With this evidence in the case the jury was justified in finding that the contractor was reasonably alert to discover the correct grade, that he apprised the superintendent of the inaccuracy of that furnished by the surveyor, and that he performed the work in accordance with the lines and grades thus given only when the superintendent of street improvements, being advised of such inaccuracies, ordered him to do so. Under these circumstances it seems quite clear that upon the authority of our former decision in this case the recovery on the last trial must be sustained, or the principle of that decision overruled.
It is to be observed that the provision in the contract upon which the defendant relies relates to grades as a whole, and not to lines or grades separately. Hence, the term "designate and fix grades" is to be construed as involving all the essentials *Page 450 necessary to the complete designation and establishment of the entire grade, including the necessary lines as well as the depth and height of the excavation or fill. Therefore, in considering the question of the defendant's liability for having furnished the contractor with an erroneous grade and having, with notice of its inaccuracy, insisted upon and required him to construct the street upon and in accordance with it, the same principle as to the defendant's liability should be applied to the error relating to the required excavation or fill, as was applied to the error as to the center line. While in our former decision we expressly declined to pass upon the construction of that term, it was, however, said: "It is to be observed that this clause of the contract does not in terms refer to lines, or center lines, but requires the surveyor to `designate and fix grades.' It may be that the designation and fixing of grades includes the giving of lines and center lines." We now think that to hold that the term "designate and fix grades" does not include both lines and grades, and apply to required excavation and filling as well as to the center line, would be too narrow and an incorrect construction of that term as used in and intended by this contract. Therefore, we are of the opinion that, in view of the change in the evidence, the same rule applies to the furnishing of the grades by the city surveyor and the requirement of the superintendent of street improvements that the work should be conformed thereto, as was applied in the former decision to the line so furnished, the facts as they now stand being essentially the same as to each. Obviously it was upon the basis of our former decision that the case was tried and determined by the courts below, as upon the last trial the learned trial court expressly charged the jury that before the plaintiff could recover she must prove to its satisfaction that the contractor was directed to follow the grades and lines given by the surveyor, after the defendant's attention was called to the fact that they were incorrect.
But it is sought to be maintained that the superintendent of street improvements, who was the chief officer under the commissioner *Page 451 of public works having direct charge and control of the work upon contracts for the regulating and grading of streets, had no right to direct the contractor to follow any grade except such as was in accordance with the profile. It is also claimed that the grades as given were not according to the profile, and, consequently, although the contractor was required to perform the work under the direction of the bureau of which the superintendent was the head, yet that the contractor was bound at his peril to disregard any and all directions given him by such officer and rely upon the profile alone. It does not seem possible that a city could, by its officers in charge of the work, compel the contractor to do work in a specified way, and then require him to expend large additional sums in doing it otherwise, without liability upon the part of the city to respond in damages for the extra work occasioned by its wrongful direction, especially where, as in this case, the trial court was justified in finding not only that the action of the city surveyor in giving the final certificate was false and made in bad faith, but also that the contractor was required by the superintendent to perform the work in accordance with the grade furnished by the city surveyor, against the protest of the contractor, and after notice by him to the superintendent that the grades thus given were erroneous. As sustaining the doctrine contended for by the defendant, it relies upon the cases ofBonesteel v. Mayor, etc., of N.Y. (22 N.Y. 162); Glacius v.Black (50 N.Y. 145); Woodruff v. Roch. Pittsburgh R.R.Co. (108 N.Y. 39), and Fitzgerald v. Moran (141 N.Y. 419).
An examination of those cases discloses that they are clearly distinguishable from the case at bar, and were decided upon principles which have no application here. In the Bonesteel case it was held that where work was done under an ordinance for the grading of the street, and the contract under it provided in express terms the depth of the excavation and all the particulars of the work, to be done under the direction of the street commissioner, a change of depth from two feet to one could not be made by the officer having superintendence of *Page 452 the work; that as the common council authorized the street commissioner to contract only for the excavation of rock one foot below the grade, he had no right to enter into a contract for its excavation two feet below the line of the curbstone grade; and that by assuming to make a contract different from that authorized by the common council, he acted without authority, and, hence, there could be no recovery. The Glacius case merely holds that where one enters into a contract to furnish materials and perform work, and materials are furnished and work performed, but not done in the manner stipulated, no action will lie for the compensation, and that, at least, a substantial performance must be shown before a recovery can be had. In Woodruff v. Roch. P.R.R. Co. the plaintiff as sub-contractor made a cut through an elevation, and after it was substantially completed the sides caved in and the plaintiff removed the earth upon the request of the engineers in charge under an agreement that it should be taken out for a price specified, it, however, appearing that the work was under the supervision of the original contractors, and that they paid all the engineers and entered into sub-contracts for the performance of the work. In an action against the railroad company it was held that the evidence failed to show any liability upon its part, as it did not disclose that the work was done under any express or implied agreement with it. TheFitzgerald case was an action upon a contract for plastering, which provided that certain designated cement should be mixed with equal parts of good, sharp and dry sand, while the mixture used was made of two parts of sand to one of cement, and it was held that neither the superintendent nor the architect had any right to thus change the contract. Clearly the principle of those cases has no application to the question under consideration.
When, however, we examine the cases of Messenger v. City ofBuffalo (21 N.Y. 196, 199); Mulholland v. Mayor, etc., ofN.Y. (113 N.Y. 631, 632); Brady v. Mayor, etc., of N.Y. (132 N.Y. 415, 427), and Horgan v. Mayor, etc., of N.Y. (160 N.Y. 516,523), we there find the principle *Page 453 applicable to the case at bar, and abundant authority to sustain the recovery in this action. In the Messenger case the city of Buffalo employed the plaintiff to pave a street and to furnish the sand for that purpose under a contract by which it was to grade the street, and the work of paving was to be performed under the direction of the street commissioner. The street was so excavated that a quantity of sand beyond that specified in the contract was necessary. The plaintiff, by the direction of the street commissioner, furnished the excess required, and this court held that he was entitled to compensation therefor. In that case it was claimed that when the plaintiff found he could not fulfill his contract in all particulars he should have obtained the action of the common council before commencing or continuing the work, but this court said: "This could not have been absolutely required to enable him to recover. The corporation had authorized the street commissioner to make the contract, and the contract made provided that the work should be done under the direction of such commissioner. This plainly intended that the street commissioner might direct in regard to variations rendered necessary by the action of the city authorities." In theMulholland case there was a contract between the plaintiff's assignor and the defendant for grading and flagging one of its streets. Through the erroneous action of the defendant's engineer, more work was required of the contractor than would have been necessary under the contract, and it was held that the plaintiff was entitled to recover. The court said: "The change was erroneous, and if the correction of the error, or by reason of it, the plaintiff performed extra labor and incurred increased expense, he is entitled to recover according to its value and amount." In Brady v. Mayor, etc., of N.Y., PARKER, J., said: "It is quite clear that it was the intention of the parties under this contract that the contractor should in its execution be governed by the direction of such of defendant's officers as it declared in the contract should represent it. So if the grade should be mistakenly given to the contractor by the surveyor and the work should be done in conformity therewith, and *Page 454 certificates of completion afterwards given, the defendant could not thereafter object that the plaintiff should not be compensated because, as the result of a misdirection by its officers, the specifications had not been literally complied with." The Mulholland case was there considered and the principle established by it reaffirmed. These cases were again examined by this court in Horgan v. Mayor, etc., of N.Y., where Judge BARTLETT said: "It has been frequently held that if a municipal corporation, by its own act, causes the work to be done by a contractor to be more expensive than it otherwise would have been according to the terms of the original contract, it is liable to him for the increased cost or extra expense." (See, also, Moore v. Mayor, etc., of N.Y., 73 N.Y. 238; Reilly v.City of Albany, 112 N.Y. 30, and Van Dolsen v. Bd. ofEducation, 162 N.Y. 446, 452.)
An examination of the foregoing authorities and the consideration of the decision in this case upon a former appeal render it quite obvious that under the evidence as it appears in the record of the trial under review, the plaintiff was entitled to recover for the additional work he was compelled to perform by reason of the erroneous grade given him by the surveyor in charge and according to which he was required by the superintendent of street improvements, with a full knowledge of the facts, to grade the street and by whom he was subsequently required to change such grade at a large additional outlay.
These considerations lead to the conclusion that the judgment appealed from should be affirmed.
GRAY, CULLEN and WERNER, JJ., concur with HAIGHT, J.; PARKER, Ch. J., and VANN, J., concur with MARTIN, J.
Judgment accordingly. *Page 455