The tests made by the defendant of the city wells were fairly made. Of this no question is presented by the plaintiffs. That the tests of the Cook well were fairly made, as far as they could be made without lowering the pumps, can, upon the evidence, hardly be questioned. The claim of the plaintiffs, however, is that that test could not fairly be made without lowering the pumps so as to exhaust the water in the Cook well. The defendant contends that the only test required by the contract was by a change of the suction from the city wells to the Cook well, and that no change in the position of the pumps was contemplated. Upon the trial the court ruled with the plaintiffs, and allowed the jury to say whether a fair test, as required by the contract, could be made without lowering the defendant’s pumps, and refused to charge that under the contract the defendant was not required to lower the pumps in making the required test. An exception to this refusal and to the charge of the court upon this subject presents the only question which this court is called upon to determine.
Upon an examination of the evidence in the case, and the questions of law involved, we are of the opinion that the defendant was not required, in making the test provided by the contract, to lower the pumps. This conclusion is reached whether the construction of the contract presents - a question of law for the court* or whether the contract be one of those wherein the intent is to be gathered from collateral circumstances and wherein the construction presents a question of fact. The contract provides that if under “ said tests ” the Cook well does not average one-half million gallons in excess of the city wells, no liability is created against the defendant. The words “ said tests ” are defined in the prior part of the contract. The defendant was to make a test of the city wells from which the city water was taken, and to keep a record of how much water was pumped from them each and every twenty-four hours. “ Then they agree" to put the suction .into the Cook well, so called, and shut off all other wells, and test the Cook well, to determine the difference in the quantity of water produced by the Cook well for ten days over and above that pumped from the present city wells under said test.” It is difficult to conceive how the city could define more explicitly the test which was to determine its liabil*439ity. After having made this provision, it could hardly be called upon to negative all other tests. For is it claimed here that anything agreed upon was omitted from this contract. The claim seems to be, because the test provided for by the contract is not as thorough as another test might be, that another clause should be, by the court or jury, written into this contract, providing that the defendant in testing the Cook well should also be required to lower its pumps. The city would, probably, never have executed such a contract. The test was prescribed in view of existing conditions. It is enough, however, that the contract does not so provide. It is the province ■of a court of law to construe contracts — not to make them.
Plaintiffs further urge that it was not contemplated that these tests should be made with the pumps as they then existed, because the test contemplated a possible flow of 4,500,000 gallons, and both pumps together are only of 3,000,000 gallon capacity. But to lower the pumps would not add to their capacity. It may well be that, if they found water in excess of 3,000,000 gallons, they would be willing to add other pumps. But it appears from the evidence that this 1,000,000 gallon pump, as guaranteed, could ' pump about 1,500,000 gallons. In other words, the guaranteed capacity of the pump is not its greatest capacity. The mere fact that these pumps have a guaranteed capacity of only 3,000,000 gallons is not sufficient from which to conclude that it could not at least approximately be ascertained thereby whether the well'would not yield 4,500,000 gallons.
Assume on the other hand that the construction of this contract in view of the surrounding circumstances presents a question of fact. We are still agreed that the facts do not justify the conclusion that the contract requires the defendant to lower these pumps in order to make a fair test of this well. The plaintiffs’ construction of the contract can only be based upon two facts: Fwst, that the water in the Cook well cannot be exhausted without -lowering the pumps; second, that there was a conversation about the time the contract was made showing an intention to lower the pumps. While this last conversation is disputed, we will assume for the argument that it occurred. Fevertheless, the fact remains that while in the contract specific provision was made for the change of the suction, no provision was made for the lowering of those pumps, which would be an all-important provision under the plaintiffs’ theory. Again, *440the great expense in changing these pumps for a mere test is strong-evidence that it was not contemplated. If the test failed, the work would be wholly lost to the defendant, because its own wells-were only twenty-six feet deep, and its pumps were sufficiently low to exhaust all the water. Prior to this agreement the plaintiffs-were, at a nominal expense, presumptively, testing their wells with a rotary pump. The court correctly charged that the defendant could not be required to make such a test. Would it be reasonable-to hold that it contemplated an exhaustive test, at a cost of $6,000 or $7,000, with its suction- pumps, When it was not required to make an exhaustive test with a rotary pump at a much less-cost ?
Again, it is provided in the contract that the “ Commissioners, are to furnish and put the suction pipe in the Cook well, and the-expense of said suction pipe and connecting special castings and grading is to be deducted from the price paid for the well, whether the said price paid be $1,000 or $2,750.” It will be noticed that the-expense of making the testj explicitly provided for by the contract, is-made a charge against the contractor. Not a word is said about any exjsense for lowering those: pumps. If that had been contemplated as a part of the contract, that part of the expense would naturally have been provided for while providing for the expense of changing the suction. The irresistible inference to be drawn from all the-facts is that both parties contemplated that with a deeper well the-water would flow into a depth which could be reached by the suction with the pumps as they were then placed, and that the defendant’s commissioners were contracting for a well which could be used with those pumps. The agreement was not to exhaust or make 'a-thorough test of the Cook well, but to make a certain test. Upon the result of that test the liability of the defendant was by the contract made to' depend.
The decision of this case upon the former -appeal is not in conflict with the conclusion here reached. That decision was based purely upon the bonafides of the test made by the defendant. The construction of the contract was not determined. (29 App. Div. 49.)
Our conclusion is, therefore, that the construction, of this contract, whether as a matter of law, or one of mixed law and fact,, was for the court; that under the contract the defendant was not *441bound to lower the pumps in order to make the test required, and that the trial court erred in submitting this question to the determination of the jury. The judgment and order should, therefore, be reversed.
Adams and McLennan, JJ., concurred; Hardin, P. J., dissented ; Spring, J., not sitting.
Judgment and order reversed and a new trial ordered, with costs to the appellant to abide the event.