Tn July, 1893, the plaintiff’s assignor, one Mahoney, entered into two contracts with the city of Yew York for “ Regulating and Paving with Macadam- Pavement ”. the roadway of Eleventh avenue from Kingsbridgé road to Fort George road and the roadway of Fort George avenue from Amsterdam to Eleventh avenue, respectively. *281The contracts provided that the contractor should excavate the subsoil, or other matter, whether earth, rock or other material, to a specified depth, and that “ if rock be encountered it shall be’ removed for at least three inches deeper.” In 1884 the city had let contracts for “ Regulating and Grading” the streets in question and under those contracts, according to provisions therein set forth, all rock was to be excavated to a depth of two feet below the curbline and the excavation then refilled with soft filling to the street level. The contractors entered upon the performance of their work, and several years before the contracts involved in this action were entered into, received payment in full upon proper certificates that the work required by the contracts had been fully performed.
' There seems to be no question but that if the contracts for “ regulating and grading ” these streets had been actually performed as therein required, then the performance of the contracts in question would not have necessitated the removal of any rock, except possibly for three inches along the gutters and such slight projections of rock as might be found in other places. When Mahoney commenced work under his contracts, however, he found, upon - removing the soft filling on the surface of the streets, that the rock had in fact been removed to a depth of only about a foot below the curb, instead of two feet, as required by the contracts and he immediately protested that he was not bound, under his contracts, to remove the rock which should have been removed under the contracts for the grading of the streets; but the city authorities having supervision of the work insisted that the rock must be removed by the plaintiff before the streets were paved. In order to fulfill his contracts, therefore, he and the plaintiff, to whom he assigned the contracts while the work was in progress, were obliged to excavate and remove about a foot of rock beneath all the pavement laid.
After completing the contracts, plaintiff brought two actions to recover the cost of removing this rock. Upon the trial they were consolidated and the jury rendered a verdict in favor of the plaintiff for $37,485, the only question submitted to them being the amount of the extra or additional work done and its value. From the judgment entered thereon and an order denying a motion for a new trial defendant appeals.
It is not seriously disputed but what both parties to the contracts, *282when they were entered into, supposed that the work of. grading under the prior contracts had been fully and completely performed. All of the surrounding circumstances leading up to the execution' of, as well as the contracts themselves, indicate that fact. The contracts were not for “grading,” but for “regulating and paving.” That being so, I am of the opinion the casé cannot be distinguished in principle from Morgan v. Mayor (160 N. Y. 516). There, the plaintiff had contracted with the city to clean and construct a concrete bottom for a lake in Central Park. The' contract provided that the contractor should drain off the water from the bottom of the lake during the progress of the work, and it also contained a provision similar to the one found in the present contracts, to the effect that the contractor must satisfy himself as to the amount of work to be done and- bear any loss or damage arising from the nature' of the work or from unseen obstructions or difficulties. There. was an outlet pipe in the bottom of the lake, the gate of' which was visible and which the contractor saw before he entered into his contract — through which nearly all of the Water might'. have been drained off. When he entered upon the performance of ■ the work, however, it was found that the pipe was obstructed so that the contractor was obliged to pump out the water, and he brought an action to recover'for such additional work. The Court of Appeals'held that he was.entitled to recover, Judge Baetlett, who delivered the opinion for a majority of the court, saying: “ The question that lies at the threshold of this case is: Did the city owe the duty to the plaintiff of having the outlet pipe of this pond in working order ? * * * It was, of course, impossible when the plaintiff went upon the ground to examine the proposed work to see more than the outlet gate and the size thereof; whether the sewer lying beyond was in a condition to carry off the water was something that he could not ascertain by a mere inspection of the premises. A fair construction of the contract on this point authorized the contractor to assume that the pond could-be drained of water' in a general sense. There would, of course, be inequalities - and irregularities on the bottom, where more or less water would ■ remain, and which the contractor was bound to pump out and keep clear during the progress of laying the concrete work. * * * It seems to us a strained and unjust construction that would require *283the plaintiff under these provisions to remove, if necessary, the entire body of water from the pond. This latter work is a subject upon which the minds of the parties could not have met, and the plaintiff in his estimates did not consider that he was called upon to pump out this great body of water lying upoii an area of six acres. It was proper for plaintiff to assume that the water of the lake could be discharged into the sewer through the outlet the city had constructed for that purpose.”
The words quoted are quite applicable to the facts in the present case, except that this plaintiff, if anything, occupies a more favorable position. An examination of the streets indicated that they had been graded. The contracts for such grading were on file in the comptroller’s office as public records with the certificates showing that the work had been fully performed, and for which the contractors had been paid in full. The plaintiff’s assignor, before making his estimates, personally ascertained both of these facts. Under his contract he had the right to select his'own method of ascertaining the actual work to be doné and he adopted this method. If the plaintiff in the Ilorgan case was justified in assuming from the mere existence of the outlet pipe that the lake could be substantially drained through it, it seems to me more clear that the plaintiff’s assignor was justified in assuming that the rock had been removed for two' feet below the curb line. The contracts for the grading required it to be removed to that extent"and the public records of the city showed the contracts had been fully performed. 'The contract in the Iiorgan case-required the contractor to pump out the water from the lake, but this was held to mean simply the water that might remain in the lake owing to the irregularities in the bottom, which could not be carried off through the drainage pipe. So, in the present case, while the contract provided for the excavation of rock, it seems to me this had reference to such rock as might be found above the two feet subgrade, owing to irregularities in its surface, or rock for three inches along the gutters. This was all the parties had in mind when the con-tracts were entered. into. It was not then contemplated by either of them that the plaintiff’s assignor would have to remove at least a foot of rock which then supposedly had been removed under the grading contracts. This was a subject on which their minds did *284not meet, but the plaintiff, in order to perform the contracts in question, was compelled to excavate this rock, and that was work entirely outside of the contracts and unaffected by their provisions.
I am of the opinion that the plaintiff was entitled to recover for this additional work, and since its performance was not controverted the only, questions for the jury, as the trial court held, were the amount of such work and its value.
Objection is made to the form of the complaints, but, they allege facts sufficient to sustain the recovery. It is not necessary to determine the exact form of the action, because it does not appear that the question was properly raised Upon the trial, or that the defendant was misled or prejudiced in any way oil that account. Neither were there any errors committed calling for reversal. .
The judgment and order appealed from • must, therefore, be affirmed, with costs.
Miller and Dowling, JJ., concurred; Ingraham, 'P. J.,-and . Laughlin, J., dissented.