The plaintiff sties for damages measured by the value of work which he was required to do as an incident of his contract for repaving Cypress avenue in the borough of Queens. The value of the work done is not in dispute, the only question being as to his right to recover at all. The street to be repaved was an ancient road which had been worked for many years at its natural level, and had been first a plank road and after-wards a macadamized road. ' The repavement was rendered necessary because the macadam had fallen into disrepair. In the course of the work the contractor was required to partially regrade the street, which called for an amount of earth excavation. It is for this excavation that plaintiff has recovered. We think that it is quite clear that the grade of the street had never been legally changed when the contract was executed, and that" regrading was not called for by the contract and not within the contemplation of the parties when the contract was executed.
The bid, contract and specifications were evidently made upon printed forms intended to apply to cases of either original paving or repaving. They are entitled “bid” or “contract” or “specifications,” as the case maybe, for “regulating, grading, curbing and repaving,” etc., and in each of them are a large number of items of various kinds of work such as might be encountered either in laying an original pavement or in repaving. The printed description of the work in the specifi*114cations prescribes that it shall consist of u regulating and grading the entire street (or, if the street is already paved, of removing or readjusting the old pavement * * *).”
The only items .upon which bids were asked were (a) for completed asphalt pavement, (b) for concrete, and (c) for furnishing and setting new concrete curbstones. The items for “ earth excavation ” and “ earth filling, ” for which spaces were provided in the printed forms, were left blank, no bids, being either asked or given as to them. The contract, in its printed part, referred to “ the plan now on file in the Bureau of Highways.” There was no such plan on file in that bureau, but there was on file in the county clerk’s office a somewhat incomplete plan which had been made by the borough president in 1903 and approved by the board of estimate and apportionment. This plan purported to show the natural grade of the street, and also an altered grade, and the work for which plaintiff now seeks compensation consists in bringing the natural grade to the altered grade shown on this map.
From the circumstances above detailed we think that it clearly appears that it was not contemplated by either of the parties when the contract was made that the work would include a substantial amount of earth excavation of which no estimate was .made and for which no bid was asked, and the necessity for which excavation was not shown on any map or plan on file in the bureau of highways. ■ The defendant insists that it was the duty of the contractor to consult the map on' file in the county clerk’s office before making his bid. We do not so consider. In view of the facts that the street was already paved; that the contract was only for repaving; that no item was specified in the proposal or specification which would be appropriate to regrading, and that there was no plan on file in the borough president’s office, the contractor was quite justified in assuming that the street was to be repaved at its then existing grade and to make his bid accordingly. It is at least open to question whether the map' or plan, signed by the president of the borough in 1903 and approved by the board of estimate and apportionment was effectual to change the grade of Cypress' avenue, which was an ancient street or road laid out and worked at the natural grade. ''Section 441 of the charter *115of 1901 (Chap. 466) provided that “Whenever, any street in The City of New York shall have been used as such for upwards of twenty years [as Cypress avenue had been] without having the grade thereof established by law, the level or surface of such street as so used shall be deemed to be and to have been the grade thereof.” There is no evidence that the grade of Cypress avenue had ever been legally established, otherwise than at the natural grade, before the adoption of the Greater New York charter. After that time the grade could be changed only in the manner provided in section 442 (as amd. by Laws of 1903, chap. 409). It is not claimed that when the contract in suit was executed the grade had been so changed. The result is that the work of regrading was not included in the contract.
It was shown that the work of regrading was ordered by the engineer and executed under protest on behalf of the contractor that it was in excess of the requirements of the contract.
Upon these facts we are of opinion that the plaintiff is entitled to recover upon the rule laid down in Borough Const. Co. v. City of New York (200 N. Y. 149). In that case, as in this, the contractor claimed compensation, by way of damages, for a breach of his contract in that he was required to do work not covered by the contract. The Court of Appeals said: “ The learned counsel for the appellant with considerable insistence advances arguments applicable to an action brought to recover on contract for extra services and materials and leading to the conclusion that such recovery cannot be permitted because such materials and work were not called for or authorized in the manner prescribed by the contract. Of course on the premises formulated by counsel on this theory his conclusions are unimpeachable, but the answer to the entire argument is that this action does not rest on any claim for extra services or materials under the contract, but on an alleged breach of the contract by the city and its representatives whereby the respondent has suffered damages, and the question is whether the action can be maintained on that line.
“ I regard it as settled that it may; that within certain limits a contractor who is ordered by the proper representatives of the municipality to furnish materials or do work as covered by *116his contract which the former thinks are not called for by such contract may under protest do as directed and subsequently recover damages because he has been so required, even though it should turn out that the contractor was right and that the official had no right to call on him to furnish such materials and do such labor. Decisions of this court have so conclusively established the principle that under such circumstances the contractor may treat the' conduct of the municipality acting through its representative as a breach of contract and recover damages, that it is only necessary to summarize these without argument.”
The court cited in support of its view Gearty v. Mayor, etc. (171 N. Y. 61); Lentilhon v. City of New York (102 App. Div. 548; affd., 185 N. Y. 549); People ex rel. Powers & Mansfield Co. v. Schneider (191 id. 523). The defendant places much reliance upon Dunn v. City of New York (205 N. Y. 342, adopting' the dissenting opinion of Ingraham, P. J., in 141 App. Div. 280). In that case a contractor for regulating and paving ¡Eleventh avenue in the city of New York had expressly contracted to remove, where necessary, the sub-grade rock, and was warned by the terms of the proposal that the engineer’s estimate of the amount of rock to be removed was only tentative, and that the bidder must satisfy himself upon that point. . It turned out that there was more rock to be removed than had been estimated either by the engineer or the contractor. The latter sought to recover the amount of the expense incurred in removing the unexpected rock. It was held that he could not recover. That case differed from the present in. two important respects. In the first place the contractor sued as for work done under the contract, and in the second place he had expressly contracted to remove whatever rock was necessary, and had been compelled to do more than he expected only because he had failed to take effective steps to inform himself before bidding as to how much rock he would be called upon to excavate.
The judgment and order appealed from must be affirmed, with costs.
Laughlin, Clarke and Miller, JJ., concurred; Ingraham, P. J., dissented. .