The plaintiff is entitled to the relief demanded in the complaint, with costs. Section 15 of chapter 418 of the Laws of 1897 does not apply under the circumstances shown in this case.
As between the defendant Moore and the city, the latter must succeed. • ■
During the year 1902 the city of Syracuse desired to improve the channel of Onondaga creek. On Atignst fourteenth it issued a notice to contractors. In that notice it was stated that the “ estimate of quantities is to be considered only as approximate,;” that bidders were required to form their own judgment of the quantities and character of the work; that the contractor should have no claim against the city by reason of any variation between the quantities of the approximate estimates and- the quantities of the work as done and that the bids would be' computed and canvassed by the quantities mentioned, in the -following estimate. ■ Then appeared various items: (a) All bailing and draining, (b) Clearing, (d) 43,500 cubic •yards, excavation, (e) 800 cubic yards embankment, (f) 1,000 cubic yards rip-rap. On September second Mr. Moore submitted • his bid : (a) For bailing and draining,, the sum of $10,000. (b) For all clearing, the sum of $500, (d) For excavation, the sum of twenty-eight cents per'cubic yard, (e) For embankment, the sum. of twenty-live cents, per cubic yard, (f) For rip-rap the sum of $2 per cubic yard, (i) For all work done by written order of the commissioner of public • works, its actual reasonable cost to the contractor, as determined by the commissioner, plus fifteen per cent of. said cost. On ¡November fifth the contract between the city and Mr. Moore was executed. The latter agreed to complete the work and furnish all the labor, machinery, tools and material, to do everything required to improve Onondaga creek in the manner and under the conditions and requirements thereinafter specified and in accordance with the plans of the city engineer as exhibited at the letting. It was agreed between the parties- that the quantities of work to be done and the materials to be furnished as given in an accompanying notice to the contractors are only for the purpose of comparing on a uniform basis the bids offered for the work under the contract. And it was agreed that the board of contract and supply reserved the right to increase or diminish'the above-mentioned quantities, or *174any -of them, as might be deemed necessary by the commissioner of public works. ..It was further agreed that the city engineer might make alterations in the line and grade, and the commissioner in place, form, position, dimension or material of the work therein contemplated, or of any part thereof, either before or after the com-, mencemerit of construction. “ If such alterations diminish the quantity of work. to be done they shall. not constitute a claim for damages or for. anticipated profits on the work that may be dispensed with;, if they increase the amount of such work, such increase sliall be paid for according to the quantity actually done, and at the price established for such work under the "contract; or in case there is no price established, it shall be paid for at its actual reasonable cost as determined by the commissioner, plus fifteen per cent of said cost.” The contract further provided that in the item “Bailing and Draining” there should be included the necessary machinery,-labor, power, materials, coffer-dams or other appliances to so far remove all water, ice or snow from - the work as to enable it to be thoroughly done and inspected. The prices Mr. Moore, was to be paid for such work corresponded with .the prices specified in his bid. -
Mr. Moore proceeded with the work, but for some reason the amount of excavation shown in the .plans was so far increased by the city that fit amounted to 84,676 instead of 43,500 yards. The contractor claims that his bid of $10,000 for'bailing and draining Was based upon the estimate of 43,500 yards of excavation; and when tlie excavation was practically doubled the' amount of bailing and draining required was also greatly increased, and that .the amount allowed him for shell item should be also increased in the filié proportion. This claim is based upon the provision that-if the alterations in-the line, grade and dimension of theyvork contemplated in the contract increase the amount of such work, such increase shall be paid for according.-,to the quantity actually dene and at the price established for the work under the contract. ■
The first answer to this proposition is that there is no evidence in the case of the quantity of bailing and draining beyond that .orig-. inally required which was necessitated by the - increased excavation. And, further, that there is no price established for such work under the contract. The price for excavation at twenty-eight cents per *175cubic yard is established. But it cannot fairly be said that the amount to be paid for additional bailing and draining can be fixed by dividing the $10,000 bid therefor by 43,500, the approximate amount of cubic yards of excavation contemplated, and that the quotient is the price per cubic yard for such work. - If the contractor is entitled to anything for this item it is the actual reasonable cost of the additional bailing and draining, plus fifteen per cent; and there is no evidence in the case as' to what such cost is.
But as I interpret the contract there is another answer fatal to Mr. Moore’s claim. His agreement was to do all the bailing and draining necessitated by the excavation which the contract required for $10,000. This might be more or less than the amount, orig-' inally estimated. The city had the power to make such'alterations. The bid was put in with this in mind. If the total excavation had been decreased the contractor was still entitled to $10,000. So of an increase in this same item.'
I do not hold that an increase might not be so great as to constitute extra, work under this contract. If so, the contractor would be entitled to recover compensation for the bailing and draining entailed thereby. I do not even hold that the increase in the present case was not so great as to be outside of the contemplation of the .contract. But that question, in view of the pleadings, is not here. All that' I hold is that for work done fairly within the contemplation of the contract executed by the parties no additional compensation can be allowed under the' item of bailing and draining.
Proper findings may be prepared and if riot agreed upon will be settled upon five days’ notice.