On the 23d of October, 1906, the plaintiff made a contract with the defendant whereby- it agreed to furnish all labor and materials at its own cost and expense necessary or proper for the purpose and in good, substantial workmanlike manner and in strict accordance with the specifications therein contained or attached, regulate, grade and pave or repave with asphalt pavement on the designated foundation and roadway of Cypress avenue from Grates avenue to borough line in the second ward in the borough of Queens and set and reset such ' curbstones, heading stones, etc., as may be necessary, and maintain said pavement for five years from the final completion and acceptance thereof. The contract also provided that to prevent all disputes and litigation the engineer shall in all cases determine the amount or the quality of the several kinds of work and material which are to be paid under this contract and shall determine all questions in relation to the work and materials and construction thereof, and he shall in all cases decide every question which may arise relative to the execution of this contract on the part of the contractor. His estimate and decision shall be final and conclusive and such estimate and decision, in case any question shall arise, shall be a condition precedent to the right of the contractor to receive any money under this contract. It was also provided that the contractor should receive certain specific prices as full compensation- for furnishing all the material and performing all the labor which may be required in the prosecution of the whole work, and in all respects performing and completing the same; that “incase the grade of the street shall be changed during the progress of the work the contractor will conform to the altered grade at the prices specified herein as far as they are applicable; and for any work the price of which is not specified in this contract the provisions heretofore contained in relation to the work not provided for in this contract shall apply ” By the specifications it was provided that the work should consist of regulating and grading the entire street, or if the street is already paved, removing or readjusting the old pavement, setting and resetting curbs and laying sidewalks whereever required and laying asphalt pavement; that all *118materials of every description, earth, rocks, subsoil, vegetable or other matter, brick and stone masonry overlying the sub-grade thereafter described should be removed and the roadway and sidewalks freed from all stones and shaped as shown on the plans; that the excavation should be carried to the established grade and the sidewalk slope upwards from the curb grade towards the house lines, the embankments should.be brought up to the designated grades, and various provisions were made as to the disposition of materials necessarily excavated; that all excavations and materials necessary for the construction of the curb should be included in the price bid per linear foot for the cement concrete curb.
It was admitted on the trial that the plaintiff performed the contract and completed the work, and the same was certified by defendant’s engineer by a final certificate; and that the plaintiff has received the full compensation provided for by the contract. At the completion of the contract the plaintiff duly presented to the defendant a claim for additional compensation for earth excavation, which claim was rejected by the engineer, the borough president and the corporation counsel. This contract was executed October 23, 1906.
The plaintiff called the engineer for the city, who produced a plan and profile of Cypress avenue dated May 13,1907, although the engineer did not assume charge of the work until September, 1907. That map showed what was claimed to be the official grade of Cypress avenue. It seems that there had been no profile of this street filed in the office of the borough president prior to the execution of the contract. There had been, how-, ever, a map of this avenue made by the president of the borough of Queens and filed in the office of the county clerk of Queens county in 1903, and this profile map made in 1907 appears to conform to that map which was the only map showing the profile of this Cypress avenue, and then to be paved, and the, profile on that map was formally adopted by the board of estimate and apportionment in 1903. The lines on the original profile map. adopted by the board of estimate and apportionment in 1903 and filed in the county clerk’s office were in some respects different from the actual, grade of the street as it had been in use before that time for many years. ' The engineer *119for the city directed the plaintiff in performing this work to adopt the lines as shown on this map and on the map made in May, 1907. It seems that this avenue was originally an old plank road, incorporated May 15, 1851, and the name was changed to the Cypress Hill Macadam road, under the authority of chapter 375 of the Laws of 1859. It was abandoned by this turnpike company March 7, 1881, and from that time on was maintained at the grade at which the street actually was before the commencement of this repavement. Defendant’s counsel then stipulated that the defendant told plaintiff that it had to do that work according to this profile map furnished by the department; that plaintiff protested against doing it; that defendant stated it was called for by the contract, and that the plaintiff then did the work as required by the defendant and was paid the contract price therefor. It was further conceded that the matter was referred to the corporation counsel, who said that the contract called for this work, and that the plaintiff would have to do it, and that the compensation agreed upon in the contract would be full compensation for this work. A letter was then introduced, dated July 2, 1907, from the president of the borough to the plaintiff, stating that plaintiff was in default on the work, and directing it to proceed immediately. There was another communication, dated September 27, 1907, referring to a charge for excavation made necessary by the change of grade, stating that the matter had been referred to the corporation counsel, and notifying plaintiff to proceed with the contract immediately. Acting under this direction from the engineer in charge of the work the plaintiff did the work necessary to conform to this map which was on file in the county clerk’s office, which was the only map in existence which stated the grade of the work, and having received the amount specified in the contract to be paid for the paving, commenced this action to recover for the extra work that he did in reducing the avenue to the-grade as it appeared upon this map.' The parties then rested and the defendant moved to dismiss the complaint on various grounds. That motion was denied. The court then submitted the questions to the jury as to the reasonableness of the value of the excavation of 1,457 cubic yards of dirt. The jury assessed the value *120of that excavation at $874.20, and upon that assessment the court directed a verdict for the plaintiff. There was no request to submit any other question to the jury.
There was here a map which had been approved by the board of estimate and apportionment establishing the grade of this avenue, and it was the only map in existence that had any connection with the grade. To properly bring this avenue to-the grade some excavation was necessary, and that the city engineer held was the grade at which the plaintiff was required under his contract to lay the pavement. The corporation counsel so directed and plaintiff obeyed such direction. As extra work it seems to be conceded that the plaintiff cannot recover. (Dunn v. City of New York, 141 App. Div. 280; 205 N. Y. 342.) The contract in that case was substantially similar, to that in this case, and I think in this contract as under the contract in the Dunn case plaintiff was required to remove any earth that was necessary to bring this avenue to the grade at which the pavement was to be'" laid. The prevailing opinion is based upon the case of Borough Const. Co. v. City of New York (200 N. Y. 149). That case involved the construction of a sewer, and the opinion in that case examined the previous-cases in the Court of Appeals and laid down the rule which was to apply in actions of this character. After discussing the question, the court said: “ The underlying justice of the principle is that where a municipal representative, having authority to speak for it and supposed to be familiar with such matters, in apparent good faith and with a show of reason requires a contractor to do certain things as covered by his contract, the contractor, although protesting against the requirement, ought not to be compelled to refuse obedience and incur -the hazard of becoming a defaulter on his contract even though it shall subsequently turn out that .he was right and the municipal representative wrong in the dispute. The theory involves the idea that the requirement of the municipal representative finds some reasonable basis in the contract and that the question whether his demand is proper or improper is one which may be the subject of some doubt and debate and in respect of which "the contractor might prove to be mistaken if he should refuse to do what was required of him, and there is no justification for *121applying it where the municipal representative requires something which is so palpably and manifestly beyond the provisions of the contract that the contractor would not be confronted by any of the legal perils of an erroneous decision if he should refuse to obey.” And the right to recover such a claim for extra work based upon a breach of a contract is limited to such a case. I do not see how it can be said that we have now before us a case which is within the rule there applied. Here, upon the contract as it was executed, the contractor was clearly obliged to conform the grade of the avenue to the established grade and to make the necessary excavation to accomplish that object. The grade for this avenue had been established by a plan which was on file in the county clerk’s office, which had been approved by the board of estimate and apportionment, and, on the demand of the engineer and the borough president, plaintiff conformed the street to this grade. There was no question of the construction of the contract, for that clearly required the pavement to be laid at the grade established by this plan. The contractor wished to adopt the actual existing grade of the street not that established by the plan which seems to have been the only one in existence which established the grade. There was, therefore, no doubtful question of the construction of a contract, but solely a question of the amount of work that the contractor was required to do to complete his contract and that by the contract was to be determined by the engineer in charge of the work, a determination which by the contract the contractor himself especially agreed 'to be bound.
It seems to me, therefore, that the case as presented was not one which justified the contractor in going and doing the work and thereafter recovering as for extra work under the guise of a breach of the contract, and I do not think, therefore, the judgment should be sustained.
Judgment and order affirmed, with costs.