The claimant's contract was confined to the erection of the superstructure of the State Office Building in the city of New York. The superstructure could not be erected until the foundation work was completed. A separate contract for the excavation and foundation work was awarded to J.L. McDonald. The plaintiff's contract, made on or about March 1, 1928, provided: "The work of this contract is contingent upon the execution of the foregoing work by the Foundation Contractor and shall follow said work in orderly sequence. * * * The time of completion specified for the foundation work is July 1, 1928." (Italics throughout are mine.) The claimant expected to begin its work about the time so specified. Its expectations were disappointed. The foundation was not completed by J.L. McDonald and accepted by the State until about February 28, 1929. The unanticipated delay in the completion of the foundation work caused delay in the commencement and in the completion of the work specified in the claimant's *Page 378 contract and additional expense to the claimant in the performance of the work. The plaintiff has been paid the contract price for the work performed under the contract. In this action it makes claim for the damages caused by the delay.
The claimant's contract provided (Article 33):
"Extension of time: If the Contractor be delayed in the completion of the work by any act or neglect of the State, or by changes ordered in the work, or by any cause which the Architect shall deem to justify the delay as being beyond the Contractor's control, then the time of completion shall be extended for such reasonable time as the Architect may decide."
"Damages for delays: No charges or claim for damages shall be made by the Contractor, under the provisions of this Article, for any delays or hindrances, from any cause whatsoever, during the progress of any portion of the work embraced in this contract. Such delays or hindrances shall be compensated for under the provisions of Article 33." (Article 36.)
The question presented upon this appeal is whether by these two provisions of the contract the claimants expressly assumed the risk and burden of the damages caused by the delay in the completion of the foundation work.
As Chief Judge CRANE points out in his opinion, the site of the proposed building was entirely covered by a cinder fill except a small portion which was occupied by two small buildings. The engineers of the State did not know or discover that there were old foundations, piling and other obstructions underneath the cinder fill and that an old pond upon the site had been filled in. Not knowing of the existence of these conditions, the State engineers failed to provide in the plans and specifications for their removal. J.L. McDonald's contract for the excavation and foundation work, which the parties knew must be completed before work on the superstructure could begin, was based upon these plans and specifications. The *Page 379 plans and specifications were furnished to all bidders, including the claimant, "for information pertaining to work included in the foundation contract." The excavation work called for by these original plans and specifications could have been completed within three weeks. The excavation which J.L. McDonald was required to perform under plans and specifications amended to take care of actual conditions as disclosed when the cinder fill was removed was not completed for almost a year. The State maintained the right to make such changes, for its contracts provided (Article 23): "Changes and extension of time: The State without invalidating the contract, may make changes by altering, adding to or deducting from the work, the contract sum being adjusted accordingly."
Perhaps the State was at fault in failing to discover the actual conditions, and in preparing its plans and specifications accordingly and, perhaps, the plaintiff, in calculating the probable time when it could begin work upon its contract, might reasonably place reliance upon the plans and specifications furnished by the State without independent investigation. I will assume that the delay was due solely to the fault of the State. Even that assumption does not form any basis for a valid claim for damages against the State, for the claimant has expressly agreed that no "claim for damage shall be made * * * for any delays or hindrances, from any cause whatsoever, during the progress of any portion of the work embraced in this contract" and has further expressly agreed that "any delays" shall include delays caused by "any act or neglect of the State, or bychanges ordered in the work." It would be difficult to devise language more inclusive or plainer, and the claimant having voluntarily made the agreement must abide by the consequences.
The claimant, then, cannot recover unless the State has is some respect breached its contract, and because of that breach the claimant was delayed in beginning its *Page 380 work. The record fails to show such breach. The claimant's contract provided expressly that the work "is contingent upon the execution of the foregoing work by the Foundation Contractor" and by no possible process of construction can the "foregoing work" be limited to the excavation work shown by the plans and specifications. Approval of claimant's progress schedule was expressly conditioned upon "the execution of the foregoing work." The "foregoing work" certainly includes the foundation work, and fault in the preparation of specifications for the excavation, error in preliminary determination of the amount of the excavation work required, even negligent misrepresentation as to conditions, would not make inapplicable the provision of the contract that the delivery of the site to the claimant and the beginning of the work of erecting the superstructure was to be contingent upon the completion of the foundations for the superstructure, or the provision that there may be no claim for damages caused by delay due to the "act or neglect of the State." The parties chose to stipulate that the plaintiff assumes the risk of all delays unless the defendant is guilty of a breach of an affirmative covenant, and in the cases in this court cited by the appellant, recovery has been allowed only because of breach of such a covenant. Here there has been no such breach.
Judgment should be affirmed.
HUBBS, LOUGHRAN and RIPPEY, JJ., concur with CRANE, Ch. J.; LEHMAN, J., dissents in opinion, in which O'BRIEN and FINCH, JJ., concur.
Judgment accordingly. *Page 381