I concur in dismissal of the third cause of action to recover damages for delay, but solely upon the ground that, as a matter of law, the plaintiff failed to establish economic duress wrongfully inducing and supporting the avoidance of its written waiver of such damages.
I dissent, however, as to the reversal of the jury verdict upon the cause of action for engineering services. Under the court’s charge to the jury, not excepted to, the jury was entitled to find that these services were in the nature of extra work ordered by the city’s chief engineer on the job, and the evidence clearly supports such a finding. Concededly, the plaintiff failed to comply with the written request and protest requirements of the contract generally required as the basis for reimbursement for extra work, but, without exception by the defendant, the question was submitted to the jury as to whether or not these requirements were waived. Implicit in the jury verdict is a finding of waiver, and, in my opinion, the record does clearly support such a finding. (Cf. Abells v. City of Syracuse, 7 App. Div. 501; Rinehart & Dennis Co. v. City of New York, 263 N. Y. 120, 126; Foundation Co. v. State of New York, 233 N. Y. 177; McGovern v. City of New York, 202 App. Div. 317, mod. 234 N. Y. 377, 235 N. Y. 275; Empire Foundation Corp. v. Town of Greece, 31 N. Y. S. 2d 424.) The Commissioner, himself, was certainly chargeable with notice of the faulty design and what was going on in connection with the work. It certainly may-be assumed that he was well aware of the necessity for and the rendition of the particular engineering services. Under all the circumstances, the services having been required because of the faulty design, and the city having received the benefit of such services and having acquiesced in the procedures followed, it may and should be estopped from insisting upon strict compliance with the contract requirements which were expressly waived by its representative and chief engineer on the job. (See Abells v. City of Syracuse, supra, p. 509; A. & J. Cianciulli, Inc. v. Town of Greenburgh, 8 A D 2d 963, affd. 9 N Y 2d 812; Rason Asphalt v. Town of Oyster Bay, 6 A D 2d 810; see, also, Planet Constr. Corp. v. Board of Educ. of City of N. Y., 7 N Y 2d 381.)
Breitel, J. P., Rabie- and Bastow, JJ., concur with Stetter, J.; Eager, J., dissents in part, in opinion.
Judgment reversed, on the law, without costs, and the causes of action dismissed.