I dissent. The contract of plaintiff with the defendant was that he was to have five per cent on the total cost of the viaduct. The defendant treated. the judgment obtained against it by the contractor as an addition to the cost of the structure. Defendant was authorized by law to issiie bonds for the building of the viaduct. It paid the judgment by a sale of such bonds. If the judgment had been for mere damages it would have had no authority to do this, but must have paid it from the general funds of the city. By *462its own interpretation of. the transaction and of tlie contract, therefore, the amount represented by the judgment was an addition to the cost of the work. I think the defendant is bound by this and that the plaintiff is entitled to his percentage on the thus conceded total cost, and that the judgment should be affirmed.-
' Patterson, P. J., concurred.
Judgment reversed, new trial ordered, costs to appellant to abide event. Order filed: