I am unable to concur with Mr. Justice Ingraham regarding the dismissal of the plaintiff’s third cause of action. He holds, in effect, that the plan, and not the contract, determines the amount of work to be done. I do not think that this is in accordance with the language used. • The quantum of work is clearly stated in the contract. It is to regulate and grade a street between designated limits. This provision stands by itself and is plain and explicit. A later clause provides that the “entire work” shall be done “in substantial accordance with” the specificátions and plan. The “entire work” thus referred to can be nothing but the work of regulating and grad ing the street between the designated limits. It is this entire* work which is to be done “in substantial accordance with” the plan. *614That does not-mean to the extent defined by the plan, but in the manner there provided. What the plaintiff was to do, the extent and general scope of the work, is thus plainly stated in the contract. But there were a multitude of details to be arranged for, and this was the office of the plan and specifications. The former, as well as the latter, furnished a guide in the prosecution of the Work. It showed the grade to which it was necessary to bring the street either by filling or excavation, the position of the culverts, and similar. details of the work. In these particulars it both guided and, con>v trolled the plaintiff; but it was not intended to limit the amount of work which he was to do.
Both the plan and the specifications were subsidiary to the contract. Suppose the plaintiff had contracted to grade the street for 100 blocks for a fixed sum, and the plan had covered but one block, is i't conceivable that he would have been entitled- to his money upon doing the distance set out in the plan? If the plan and not the contract is to govern, the rights of the parties may depénd upon the manner in which subordinate city officials perform- ministerial acts. It is not possible that a surveyor can cut down a contract to grade a mile of a street- to a contract to grade but a block by making an insufficient plan, or that he can abrogate a contract entirely by making no plan whatever.
The history of" the contract favors this view. It originated in a resolution of the common council passed in May, 1891, that “ Dyckman street, from Hudson river to Exterior street, be regulated and graded.” At this time no plan was in existence. The proposal for bids, which is made part of the contract, recites this resolution, and states that “ sealed estimates for the above worlt ” will be received by the department of public works. There follows the surveyor’s estimate, of the amount of the work; but it is expressly provided that this estimate is only approximate, and -that “Bidders must satisfy themselves by personal examination of the location of the proposed work, and by such other means as they may choose, as to the accuracy of the foregoing estimate, and shall not, at any time after the submission of an estimate, dispute or complain of such statement, nor assert that there was any understanding in regard to the deptli.of the excavation to be made, or the nature .or amount of the work to be done.”
*615What work would it be reasonable for the contractor thus to •examine but the work which the common council had resolved should be done, and which the department was undertaking to do ? Here, as in the body of the contract, the work is clearly defined, and the definition is in no way qualified by the context. Here, as in the •contract, a latter clause requires the bidder to “ complete the entire work to the satisfaction of the Commissioner of Public Works and in substantial accordance with the specifications hereto annexed and the plan therein referred to.” I think it would be quite as reasonable to say that the plaintiff was to do only so much of the work as the commissioner might elect as that he was absolutely limited to that portion of the work shown upon the plan.
It is urged that the surveyor’s estimate in the proposals is' identical with that indorsed upon the plan, and that this indorsement applies •only to that part of the work which the plan covers. Assuming that this was patent to the bidder, I do not see how it aids the defendant. The bidder is expressly notified that this estimate is only approximate, and that he must examine the work for himself and draw his own conclusions. The city is not bound in any manner by the estimate, whether it was inaccurate as to the ground which it actually covered, or did not cover ground enough. In no case did the city consent to accept it as an indication of the extent of the work, and certainly it cannot be fairly said that the contractor was bound to do so. It was-his right and duty to be guided by the plain language of his contract, not by this tentative estimate.
It is also urged that -great practical difficulty would attend the recognition of the plaintiff’s right to do. the rest of the work. I am unable to perceive the difficulty. It may be conceded that the work could not be finished without a further plan. It was, then, the defendant’s duty to furnish one. It could not defeat the plaintiff’s .i-ight to do the contract work by refusing to disclose the exact manner in which it wished the work to be done. The complaint alleges, and the answer admits, that the plaintiff “ demanded of defendant and said commissioner that such orders and directions be made-and given as will permit plaintiff to fully finish and complete all the work by him to be done under said agreement ” (that is, the whole work specified in the contract proper); but that the defendant refused this demand. I think that this was a breach of the con*616tract. The plaintiff undoubtedly took a risk in bidding upon work for which a complete plan was not in existence, since he could not tell the exact grade which would be fixed for the remainder of the work. The risk, however, was not great in view of the fact that under this contract the plaintiff was to receive a stated sum for each cubic yard of filling or excavation.
It may be added that the legal right of the department of public works to make such a contract as is claimed to have been here made is by no means free from doubt. City officials have no authority to contract except as directed by ordinance, and in so far as they deviate from the resolution of the municipal legislative body their action is void. (Bonesteel v. The Mayor, 22 N. Y. 162.) Here the resolution of the common council was that Dyckman street should be graded the whole distance from the Hudson river to Exterior street. The department was bound to carry out this mandate; and I am not prepared to say that this work, which was all of the same general kind and easily capable of being embraced within a single contract, might be subdivided. If the work might bé subdivided at all, it is difficult to see why it might not be split up into a hundred different sections, to the great increase in the cost. At all events, it seems perfectly obvious that here there was. no such attempt, but that it was intended to execute the resolution at one time and by á single contract.
On account of the dismissal of this third cause of action, I think the judgment should be reversed and a new trial ordered.
Rumsey, J., concurred.
Judgment affirmed, with costs.