The claimant made a contract with the State of New York, April 3, 1905, for the improvement of a section of the Erie canal adjoining the village of Waterford, consisting generally in the excavation and protection of the sides of the so-called Barge canal from, the Mohawk river to a point about a quarter of a mile west of the head of lock No. 3 and the construction of locks Nos. 2' and 3, with the approaches and appertaining parts, covering a distance of ninety-one one-hundredths miles. i
Thereafter from time to time, with the assent of the claimant, alterations were made by the State in the plans and specifications, until April 14, 1909, when the State directed' certain alterations to be made known as “Alteration No. 7 ” which provided for changing the plan for retaining wall at the head of lock No. 2, extending the walls at the crossing of the old Champlain canal and forming a junction with the sides thereof; substituting a concrete lining for the puddle lining in the bottom of the canal between certain points, substituting concrete retaining walls for the pine docking .of the canal at certain points, eliminating the puddling on the sides and on the bottom in certain places, raising the by-pass channel under lock - No. 3 -and changing the specifications • for crushed stone to be used in the concrete.
The explanation contained in the alteration order for these changes made by the State is that the section of the canal at the head of lock No. 3 had become eroded by the flow of water in Cemetery creek; that this erosion had taken place along the line of the retaining wall on each side of the canal and that it would be necessary to carry the foundation of these walls to -a lower level, so that the base of the wall would rest on undisturbed material; that at the crossing of the present Ohamplain canal the sides of the new canal had not been carried sufficiently far to form a good connection with the bulkheads and the masonry wall of the old canal, and that a slight extension thereof became necessary; that the puddle lining, which was provided by the original plans in a certain section in the bottom of the canal, was not sufficient to prevent seepage through the sand and gravel through which the channel had .been excavated, and that the clay puddle lining *481would be subjected to erosion from the action of the water stirred up by the propellers of boats, and that a concrete lining nine inches thick had been substituted in a certain part of the canal to provide against such seepage and erosion; that the pile docking, which was called for by the original plans in a certain section of the canal, was subject to decay ■and would require renewal every few years; that it was thought desirable to substitute a concrete retaining wall on each side of the channel through this portion of the canal; that the clay puddle lining had been provided on the sides and bottom of the canal in- certain sections where the excavation was deep and the material in the bottom compact, and that it was thought unnecessary to retain this lining for the purpose of preventing seepage and it had, therefore, been eliminated; that the original plans required that, a by-pass channel around lock Ho. 3 should be excavated to about the grade of the canal below the lock, which would make a wide deep channel that would always be full of water adjacent to the lock, and that it had been thought desirable to raise the grade of this by-pass, so that the bottom would be above the normal water level, and to provide a concrete retaining dam at the lower end where the water dropped to a lower level; that it had been demonstrated that the best stone for making concrete was that in which the proportion of small particles Avas sufficient to reduce the voids to a minimum, and that it was thought desirable to alloAv the use of all particles of stone greater than one-eighth of an inch in diameter instead of, as called for by the specifications, one-half inch in diameter.
The amount of estimated work under the contract, including alteration order Ho. 7 and prior orders, was $946,106.76 and the amount of work excluding order Ho. 7 was $906,-396.26; alteration order Ho. 7 added work amounting to $74,848.90 and decreased work amounting to $35,639.40, so that there Avas an actual increase in the work amounting to $39,209.50.
The claimant was mrwilling to accept the alterations in the plans and specifications -proposed by “Alteration Order Ho. 7,” claiming that they constituted a fundamental change in the contract, and declined to' accept them; Avhereupon the *482Canal Board, on May 13, 1909, canceled the contract and readvertised the remainder of the work under the contract and let it to another contractor.
The case turns upon the construction of the contract and particularly of the -clause relating to alterations as bearing upon, the question as to whether or not the ¡State had the right under its contract to require the claimant to make the proposed alterations.
The clause in the contract relating to alterations reads as' follows: “ It is mutually agreed that the State reserves the •right, until the final completion and acceptance of the- work, to make such additions to or changes in the plans and specifications covering the work as may he necessary, and no claim shall be made by the Contrae tor for -any loss of profits because of any such change or by reason of any variation between the. quantities of the approximate estimate and the quantities of the work as done.”
The changes made in the work were authorized by the express language of the contract. Daly v. Busk Tunnel Ry. Co., 129 Fed. Rep. 513. In interpreting the clause of the contract relating to alterations, the nature of the work must he considered, its connection with other contracts providing for the -construction of an extensive system of canals, and all the facts and circumstances connected with the work. Woodruff v. Woodruff, 52 N. Y. 52. The clause should not be construed as similar clauses are construed in contracts wherein all the details can he specified. In a contract of this magnitude the State cannot anticipate all of the natural conditions that may arise when the work is undertaken, or perfect its plans and specifications in every detail. Greater latitude must be allowed in contracts of the extent of this one, and the language is broad enough under the circumstances to permit of all necessary changes. The -changes which have been made appear to have been required for a complete and perfect construction of the work and come within the clause of the contract authorizing -alterations to he made by the State. Williams v. Chicago S. F. & C. Ry. Co., 54 S. W. Rep. 689; Smith v. Sanitary District of Chicago, 108 Ill. App. 69; Reiss v. Scherner, 87 id. 84; Kingsley v. City of Brooklyn, 78 N. Y. 200.
*483The word “ necessary,” as used in the clause in the contract relating to -alterations, must he construed in connection Avith the contract and the general improvement of which the contract formed a part. 'The work in process of construction by the State was a Barge canal improvement of great extent, of which the contract in this case formed a small section. The relation of this contract to the entire improvement is like that for a portion of a building to the construction of the entire building. A clause in a contract for only a portion of the entire improvement must be construed in the light of the whole work. Its construction is not to be limited to the particular contract in which the clause is to be found, since changes may be required because of the necessities of other parts of the work.
The word “ necessary ” is susceptible of various meanings and should not be construed in this case as meaning indispensably requisite. There are degrees of “ necessity.” A thing or purpose may be necessary, more necessary or indispensably necessary. The term sometimes means conducive to or needful or requisite for. It also means “ reasonably ” necessary. Changes are not reasonably necessary when they are extravagant, or wasteful of public funds, or- made without the exercise of a sound discretion, or arbitrarily made without the -exercise of any judgment, or fundamental, constituting a substantial change in the nature or cost of the work so as to amount to a new contract upon which the minds of the parties did not meet. What is a reasonable change anust be left to the courts in each instance. Chancellor Kent construed the term “ necessary,” as it was used in a statute authorizing the appropriation -of land for canal purposes. He said: “ The word 1necessary ’ does not mean absolute and indispensable, or that Avithout the use of the land, in the given case, the work could not possibly go on. Th-at would be the same -as extreme necessity. The Legislature used the word in a more reasonable -and popular sense. It is sufficient that the land used, and the materials taken from it are needful, and conducive to the object, and more convenient in the application, and less valuable, and the use of them less injurious to the owner, than any that might *484readily be selected.” Jerome v. Ross, 7 Johns. Ch. 340. Under this and other authorities, the word “ necessary,” as used in this contract, is not to be construed as meaning changes without which the completed work could not be made, but as meaning such changes as were needful, requisite or desirable, subject to the limitations above stated. See Words and Phrases.
In this case there.was no substantial change in the nature of the work or in its cost. All of the work called for by the alteration order was of a character upon which the claimants had submitted a unit price; so it cannot be said that any new work was introduced as occurs, for instance, where there is a change to some class of work upon which there is no unit price stipulated in the contract. The changes made by the alteration order were matters of detail when the amount and character of the work called for by the contract are considered and the small part that this contract plays among many others which will involve the expenditure by the State of many millions of dollars. The elimination of the puddle lining, the change from puddle lining to a cement lining, the change from the pine docking to cement docking and other changes called for by the alteration order do not constitute a change in the nature of the work, and there was no substantial change in the cost of the Avork. The proposed alterations increased rather than decreased the cost of the Avorlc.
These alterations Altere not fundamental, as that term is employed to limit the changes that can be made under the clause in contracts relating to alterations. There is no hard -and fast rule that can be laid doAvn to determine what is a fundamental change in a contract. The instances grade from unimportant changes in matters of detail to important alterations which constitute -a new contract. It is a matter of judicial opinion into which class a particular case falls. Ho amount of legal learning or experience can define the variations in statutory form, and the limitations must be left to the greater flexibility of the -common law.
In McMaster v. State, 108 N. Y. 542, two contracts wer-e let by the State to the same persons for the construction of certain buildings, one for furnishing stone and the other for *485cutting stone. The former contained no clause relating to changes, and the latter contained a clause reserving the right to make any change that should he deemed “ proper in the plans and specifications of said buildings.” The buildings were to be constructed of sandstone and, after some of them were furnished, the State changed the plans so that the remainder should be built of brick with sandstone trimmings, and later on some of the buildings were cut out entirely. The contractor leased a quarry and prepared to construct the buildings as specified of sandstone, and the court held that the change from sandstone to brick with sandstone trimmings and .the cutting out of some of the buildings constituted a breach of the contract by the State. In this case the change was purely arbitrary, and the court held that the changes made and the omission of buildings from the contract did not come within the reservation contained in the contract. The change was a substantial one, not only in the nature but in the cost of the work.
In National Contracting Co. v. Hudson R. R. Water Power Co., 192 N. Y. 209, the plaintiff had constructed a masonry dam; and, while the work was in progress, it was discovered that the bed rock on which the river section of the dam was to rest lay at a greater depth than was anticipated, which would result in a greater increase of the cost of construction. In view of this increased expense, the defendant sought to substitute an earth dam with a masonry core; and it was held that this change, in view of the fact that the plaintiff was to be paid in the bonds of the defendant, constituted a breach of the contract. The clause in the contract authorized the defendant to make “ alterations in the line, grade, plans, form, position, dimensions, or material of the work herein contemplated, or any part, thereof, either before or after the commencement, of the construction.” The proposed change required a large amount of earth embankment, which was not called for by the original contract and for which no price whatever was fixed, and reduced the masonry to a very large extent. The change sought to be made in this case was not necessary,'essential or needful, but one that was made to save expense; and an .important consideration in deciding *486the case was the fact that the contracting company was to be paid in the securities of the water power company.
In the case of Clark v. Mayor, 4 N. Y. 338, among other questions discussed by the ■ court is that of the power of the city to ‘make changes under a clause reserving the right to make alterations in the form or dimension of the work. Upon this branch of the case, Pratt, J., says: “ The original contract with the water commissioners, if that should be allowed to have any influence in the case, gave them the right at any time to change the form or dimensions or materials of the work. It is clear, under this provision, that the commissioners were authorized to make any change in the dimensions of the work which they might deem proper, although by such change the excavation of rock or other materials might be very materially reduced from the original estimate. Nor would the contractors be entitled to additional ■compensation, although such change might have the effect "to deprive them of the privilege of doing the easiest and therefore the most profitable part of the work. They took upon themselves this hazard by the terms of their contract.” P. 341.
In County of Cook v. Harms, 108 Ill. 151, the contract provided that, if “ any additions, changes or alterations ” should bemade, “such changes, additions or alterations” should not invalidate or impair the contract but should be paid for as extra work; but instead of proceeding under this clause the county board, after the work had commenced, rescinded its action approving the plans and provided and adopted new plans in their stead.
In Daly v. Busk Tunnel R. Co., 129 Fed. Rep. 513, one of the questions in the case was the right of the railway to enlarge the area or cross section of a tunnel, under a clause in the contract giving the company the right to make such “ changes in the amount, dimensions or character of the work to be done, as in the opinion of the chief engineer the interests of said work or of the company may require.” With reference to tliis language the court said: “ Indeed, we can scarcely conceive that a company engaged in constructing a tunnel nearly two miles in length through a high mountain, *487and being at the time ignorant of the character of the materials and the obstructions which it might encounter, would deliberately agree-that the size of the bore should not be increased even a few inches. It is customary, so far as we have observed, for companies which are engaged in the prosecution of such great enterprises as the one in hand to reserve a large power of control over the work, as well as the right to make such reasonable changes in the original plans for doing the same as the circumstances of the case may demand; hut, whether customary or not, the power in question w*as reserved by the tunnel company in the clearest language by the contract which it entered into with Keefe, the provision being that it should ‘ have the right to make such changes in the amount, dimensions or character of the work to be done as in the opinion of the chief engineer the interests of said work or of the company may require.’ ” P. 518.
Taking these and other cases as a guide, it cannot he said that the changes in this contract are so radical as to constitute a fundamental change. The alterations were of a character of work upon which the claimant hid, and unit prices were named in the contract for the class of work called for by the alterations; and it cannot he said that the alterations substantially changed the nature or cost of the work, constituted new work, or amounted to á new contract upon which the minds of the parties did not niéet. Under every rule laid down by the cases, the proposed alterations would not appear to come within the ban of judicial disapproval.
To give the term as used in this contract any other construction than that above indicated would seriously interfere with the execution of the contracts for the construction of the Barge canal. If the term is to he given the meaning of indispensably necessary, it might prevent the State from making even incidental changes in detail and would certainly interfere with many other changes that do not substantially affect the rights of the parties and yet are not absolutely required by the necessities of the work. The term must have a reasonable construction; and such a construction, would authorize the State to make the changes made by alteration order No. 7, some of which at least were absolutely necessary *488and others of which were" conducive if not essential to a more perfect piece of work.
This was one of the first contracts for" the construction of the Barge canal let by the State, and the plans for the entire canal had not been formulated. There was a good deal of delay from one cause or another during the performance of the contract. The site of the line of the canal was crossed by city streets -and by a railroad and was occupied by several city houses. Some litigation arose over the railroad crossing, and there was some delay in removing the houses. More than the usual changes in the contract were made and assented to by the contractor. An extension of time was given for the performance of the work. At the time of the submission of the last alteration order the greater part of the contract had been performed; and, in view of the fact that this alteration order increased rather than decreased the amount of work, it would seem that it was used as a pretext, for some reason not made clear to the court, for the refusal by the contractor to proceed with the work. It is also significant that no claim is made here for loss of profits on uncompleted work, but merely for delays and damages to work which has been performed, upon which the court does not pass but many of which seem to have been an afterthought when the filing of this claim was contemplated.
The interpretation here given to the contract is supported by the practical construction placed upon its terms by the parties themselves. Prior to this proposed alteration, six other alteration orders had been made respecting this contract under the clause permitting alterations to be made. Alteration Ho. 1 provided for the widening of the locks included in the contract, made pursuant to a statute passed subsequently to the making of the contract, which statute changed the width of the locks as provided for in the original Barge Canal Act. This alteration increased the cost of the contract by $82,015. Alteration order Ho. 2 provided for certain changes made necessary to afford a 'better support of the timber" attachment to the concrete retaining wall and substituted second class concrete for first class concrete. This alteration de*489creased the amount of the contract by $23,795. ■ Alteration order Ho. 3 provided for certain minor changes in the approaches to the Fourth street bridge in the village of Waterford and decreased the amount of the contract $35.24. Alteration Ho. 4 provided for enlarged abutments for the Sara-toga avenue crossing at Waterford and increased the contract by $1,562. Alteration Ho. 5 reduced the thickness of the concrete floor of lock Ho. 2 and excluded the concrete lintels over the lower end of locks 2 and 3 and provided hand-railings on the stairways of locks 2 and 3, decreasing the contract by $9,932. Alteration Ho. 6 provided for changes in the form of gate recesses, gate anchorages and operating machinery recesses, and also provided for cast iron quoin plates in locks Hos. 2 and 3, increasing the contract by $4,751. In all of these cases agreements were made between "the State and the claimant for the changes which aggregated $122,090.24.
After having accepted these alterations, thus placing its own interpretation upon the language of the clause in the contract relating to changes, claimant was unwilling to accept changes proposed in alteration order Ho. 7, though it increased the work by only $39,209.50 and did not substitute any new items or change the character of the work called for by the contract, claiming that it constituted a fundamental change in the contract, and declined to accept the alterations.
The interpretation placed iipon the contract by the parties has always been held to be a sound criterion by which to determine what the contract means. The courts have repeatedly held that “ there is no surer way to find out what the parties meant than to see what they have done.” Jacquin v. Boutard, 89 Hun, 437; affd., 157 N. Y. 686; Sattler v. Hallock, 160 id. 291; City of Chicago v. Sheldon, 9 Wall. 50; Topliff v. Topliff, 122 U. S. 121; Insurance Company v. Dutcher, 95 id. 273; Woolsey v. Funk, 121 N. Y. 87; Dodge v. Zimmer, 110 id. 48; Nicoll v. Sands, 131 id. 24; Seymour v. Warren, 179 id. 1; Winne v. Mehrbach, 130 App. Div. 329. In Sattler v. Hallock, supra, in construing a contract, the court said: “ We may resort to the surrounding facts and *490circumstances as they existed when it was made to aid us in its interpretation and also consider the practical construction which the parties have given it.” In City of Chicago v. Sheldon, supra, the court said: “ The practical interpretation of the parties themselves is entitled to great if not controlling influence * * * But in an executory contract and where its execution necessarily involves a practical construction, if the minds of both parties concur, there can be no great danger in the adoption of it by the courts as the true one.”
Under the terms of the contract and the construction placed upon it by the parties, the claimant was guilty of a breach thereof in refusing to make the proposed alterations and is not in a position to enforce any claim that it has until the work has been completed and it has been determined whether, or not the act of the claimant has caused the State any additional expense. Barge Canal Statute (Laws of 1903, chap. 147), § 7.
The claim, therefore, should be dismissed.
'Claim dismissed.