I concur in the opinion of Mr. Justice Clark. The plaintiff contracted to construct suitable cofferdams. That meant suitable *628for the purposes in view of the situation and terms of the contract. The cofferdams which it constructed were suitable for such purposes. At least, they were sufficient to take care of all water which came upon the ground during the time they were used except water which the State unexpectedly caused to come there through its active conduct and negligence. In every contract,’ even though not expressed, there is an implied covenant that neither party thereto shall do anything to prevent the other party from carrying out the contract as entered into. The State impliedly agreed not to do anything to prevent the plaintiff from carrying out its contract, or to hinder, delay or obstruct it in so doing. (Patterson v. Meyerhofer, 204 N. Y. 96; Wood v. Duff-Gordon, 222 id. 88; Brassil v. Maryland Casualty Co., 210 id. 235, 241; Carns v. Bassick, 187 App. Div. 280, 283.)
When the State cut off the flow of the water in the Erie canal and backed it upon the plaintiff's works to its damage, it breached such implied covenant, and when it deliberately opened the gates and let the water into the canal from the Mohawk river, over the protest of the plaintiff, and thereby flooded its works, it breached such contract.
The judgment should be reversed and a new trial granted.
Davis and Clark, JJ., concur.
Judgment reversed and new trial granted, with costs to appellant to abide event.