By the Court,
Tappen, J.The plaintiff brings this action to recover $26,000 and interest from the defendants, and bases his claim on the following facts In April, 1865, the defendants, pursuant to their charter, advertised for proposals for the grading and paving of hiinth avenue from Twelfth street to Greenwood. Bids were invited for the work, according to the profile map, on file in the office of the street commissioners. Attached to the map was a paper, which read as follows :
“ Estimate of about the amount of work to be done and materials required to finish the grading and paving of Ninth avenue, from Twelfth street to Greenwood Cemetery.
40,000 cubic yards of filling.
7.000 “ “ cutting.
1,974 curb and gutter through the centre.
12 corners.
3.000 superficial feet of bridge.
9.000 yards of paving.”
The profile map contained a base line, showing and representing the hard pan or bottom line of filling, and the grade line. This base line was an important fact, because of the soft and swampy condition of the ground over or upon which the avenue was required to be built or filled *566out. The offers invited and tendered were based upon the map in question and the estimate attached thereto of the actual or approximate quantity of work to be done, and this map and the estimate were prepared on behalf of the defendants, and exhibited to persons desirous of contracting for the work.
The plaintiff' being the lowest bidder, the contract was awarded to him, and was thereupon duly executed with sureties, and the plaintiff" proceeded to do the work. By the terms of the contract the plaintiff was to furnish all the materials and do all the work, agreeable to the profile of said avenue on file, &c. The grading, paving, and curb and gutter work were completed according to the profile and contract, and two or three days thereafter, and before the inspection of the work by the defendant’s inspector, the new street sank about eleven feet. The plaintiff then removed the paving, gutter and curb stone, and refilled and repaired the street, a!nd again set the curb and gutter. It appears that some of the work was done three times over. The quantity of filling done by the plaintiff, in all, was about seventy thousand yards, instead of the forty thousand, as estimated by the defendants, and the resetting of cui’b and gutter, and repaving of street involved a very large additional expense to the plaintiff.
If the defendants, in offering the work for contract, had accurately ascertained the bottom of the swamp land, it would then have appeared that nearly double the quantity of filling which they stated, was or would be required to grade the street to the profile line. So wide a departure from the fact is something more than an error or mistake; it is a misrepresentation, and where nothing is contained in the advertisement or contract, disclaiming any liability for the inaccuracy of the approximate quantity in the estimate, bidders whose bids are based upon the map, profile and estimate, and who rely entirely thereupon, have the right to hold the statements therein made to be substantially *567true in fact, and as intended for their guidance, where there is no notice to the contrary. The contract is to be interpreted in the sense in which the language thereof was used by the parties at the time of the making of the con-' tract, and with reference to the state of things which then existed. (Liddle v. Market Fire Insurance Co., 4 Bosw. 179.)
[Kings General Term, February 14, 1870.The referee’s findings, “ that as an inducement to the plaintiff to enter into the contract, the defendants represented to and induced the plaintiff to believe, and he did believe, that it would require but forty thousand yards of filling to fulfill said contract; and further, that the profile map and estimate attached thereto were incorrect and untrue in fact, and misled the plaintiff in this, that they represented that it would require but forty thousand yards of filling, when in fact it did take seventy thousand yards of earth in filling to complete said contract.
These findings are fully sustained by the testimony. Indeed there is no conflict of facts, and there appearing to be no error or exceptions upon the trial, the judgment should be affirmed, with costs.
J. F. Barnard, Gilbert and Tappen, Justices."]