(dissenting). In June, 1931, the plaintiff, The City of New York, and the defendant National Dredging Company entered into a contract for the filling and reclamation of swamp and marsh land, a part of the park commonly known as! Marine Park in Brooklyn. The contract called for the preservation! of top soil in an indicated area. The work was commenced in' July and completed by December, 1931. A final certificate of the' completion and acceptance of the work was issued by the city, and' the defendant was paid in full and executed a general release. Four years later this action was commenced to recover an alleged over-1 payment of $51,282.26 for fill beyond the bounds and limits of! the area described in the contract and the sum of $8,548 excess payment in connection with the preservation of the top soil. The1 basis of the claim in the first cause of action is that the city had paid for more fill than was actually placed in the contract area. In its effort to prove this claim, the city sought to establish that it had paid for fill in three areas located beyond and outside the; authorized contract area, which three areas are referred to as (1) the' playground area, (2) the “ fifty-foot ” area along Gerritsen avenue, and (3) the area beyond the southern limit of the contract area.
When due consideration is given to the terms of the contract" there appears to be no merit to the city’s claim with reference to, the area beyond the southern limit of the contract area. This was an extension necessitated by the presence of a watercourse! and was authorized by the city engineer in accordance with the provisions of the contract. The Gerritsen avenue strip is included in the contract, as indicated by the map, the typical profile section, and provisions of the specifications. If it were not included in the authorized contract area, there would remain an unfinished fifty-foot strip of marsh between the park and the adjacent street. It is urged that this permitted future planning and development and *537that it would have been automatically filled by fill blown in by the wind. The strip had to be filled eventually and it is unlikely that this was to be left to chance. While a levee was to be placed fifty feet away from the street, the evidence makes it clear that the fill itself was to be run over the levee and adjacent to the street area and the existing Gerritsen avenue. It is conceded that the playground area is not in the contract area, but it appears that defendant was paid for that under special arrangement with another contractor, and there is no satisfactory proof that any portion of the playground area fill was included in the total for which the city paid the defendant.
The burden was on the city to establish that 3,090,269 cubic yards of fill for which it paid were not placed in the authorized area. Considered in the most favorable light, the evidence offered by the city proved that 188,021 cubic yards of fill were placed in what it calls the unauthorized contract area. This, of itself, does not establish excessive payment by the city. The defendant’s superintendent testified to the total amount of fill. His figures show a total which allows for the unquestioned area 23,690 cubic yards less than the amount paid for by the city. This relatively small total is more than offset by the yardage which went into the area beyond the southern limit of the contract area, about which even the trial court had no doubt, and the fill in the Gerritsen avenue strip, which we also hold was properly included in the total for which the city paid.
The second cause of action related to top soil. The specifications provided: “ At the location shown on the plan, the contractor, prior to actual starting of filling operations, shall strip the indicated area of the top to approximate depth of fifteen (15) inches. The top soil shall be transported to Park Nursery in Marine Park, an approximate haul of one (1) mile, and deposited in spoil heap at designated locations to the size and area of heaps as designated by the Engineer.”
Preliminary to commencement of the work, the indicated area was staked out, so that a plot 230 by 345 feet was marked for removal of the top soil. The top soil was valuable and worth preserving. The contract clearly shows that it was the intention of the city to prevent the loss of all valuable top soil. Soon after the work of removing was commenced, it was discovered that there was much more top soil in the locality than estimated, some of which was beyond the limits of the indicated area. The chief engineer in charge then issued instructions that all the top soil that could be used should be stripped and hauled to the nursery as part of the contract. These instructions were carried out, and *538the final certificate indicates that a total of 10,538.4 cubic yards of top soil was removed. On the trial the plaintiff produced no proof that 10,538.4 cubic yards were not, in fact, removed and delivered. It is urged that the contract called for the removal of only 3,700 cubic yards, and that if, in fact, more was removed the city is not liable for payment beyond the contract quantity. The estimate was approximate only, and, under the provisions of paragraph GG of the contract, the engineer was authorized to order the removal of additional top soil. The preservation of any of the top soil was not necessary to the principal object of the contract, to wit, the fill. The fill could have been placed over the top soil, in which event the top soil would have been wasted and destroyed. Obviously, the intention was to conserve all the top soil. While it was originally thought that only about 3,700 cubic yards could be saved, it was found that a total of more than 10,000 cubic yards could be preserved. In the place where the top soil was located it was found that it was much more than fifteen inches in depth.
The engineer acted within his authority when he ordered the extra top soil removed. The city has received the full amount of the top soil for which defendant has been paid. There is no charge of collusion or bad faith between the engineer and the defendant. It may not be said that the conservation of the additional quantity of top soil is so palpably and manifestly beyond the scope of the contract as to relieve the city of the obligation of paying therefor. (Borough Construction Co. v. City of New York, 200 N. Y. 149.)
Under the so-called non-estoppel clause of the contract, the city is not concluded by the final certificate of completion and acceptance of the work and is not precluded from recovering any overpayment, but the burden is upon it of establishing that an overpayment was, in fact, made. The city has expressly disclaimed any charge of fraud. Upon the trial it was claimed that the amounts certified for payment in the final certificate were arrived at through a misconstruction of the terms of the contract. The making of the final certificate was not alleged or pleaded in the complaint, and no attack upon it was made. The complaint was, therefore, defective. (Sweet v. Morrison, 116 N. Y. 19.) Testimony that the amounts certified in the final certificate were made under a misconstruction of the provisions of the contract would have been inadmissible even in view of the non-estoppel clause if objection to such testimony had been made. (Brady v. Mayor, etc., 132 N. Y. 415, 423, 424.) The plaintiff failed to establish the allegations of its complaint, and a dismissal at the close of the plaintiff’s case would have been justified had a motion therefor been made. Apparently the defendant preferred a full and complete disclosure of the facts. *539On the entire record we conclude that defendant has received nothing in excess of that to which it was entitled under its contract, and the complaint should be dismissed.
Townley, J., concurs.
Judgment modified by reducing the amount thereof to $8,548, the sum for which recovery was allowed on the second cause of action, with interest thereon from January 26, 1932, and costs; and by directing that the action be severed and a new trial ordered as to the first cause of action; and as so modified judgment affirmed, without costs of this appeal. Settle order on notice.