Misc.] Court of Claims, May, 1920. S. PEARSON & SON, INC., Claimant, v. THE STATE OF Claims NEW YORK. Claim No. 14900. (State of New York, Court of Claims, May, 1920.) - against state of New York-contracts Barge canal. damages Items of claim arising out of the performance by claimant of a barge canal contract in dredging a channel in the Mohawk river, (1) for certain excavation work below the grade line shown on the plans, which it was claimed misrepresented the conditions to be encountered in excavating the grade line, and in connection with said item, for damages claimed as a result of the state's breach of its contract to complete a certain dam during 1909, in consequence of which claimant was obliged to dredge a channel for the flotation of a part of its plant, (2) for damages resulting from interference with claimant's work by the wires of an electric company which, without the consent of either the claimant or the state, had been strung across the site of the contract after claimant had taken possession thereof, (3) for damages occasioned by the increased cost of excavation resulting from alleged misrepresentation and breach of warranty as to the character of the material to be encountered in performing the work called for by the contract, and (4) for damages for increased cost of plant claimed to have been made necessary by the alleged misdescription of material to be excavated, considered, and the claim herein dismissed with the exception of an allowance made for damages as specified in item 2 above. CLAIM arising out of Barge canal contract. Thomas Gilleran (William H. Harris, of counsel), for claimant. Charles D. Newton, attorney-general (Wilber W. Chambers, deputy attorney-general, of counsel), for State of New York. SMITH, J. This claim arises out of the performance by claimant of barge canal contract 20-B. The con Court of Claims, May, 1920. [Vol. 112. tract was for dredging a channel in the Mohawk river between Mindenville and Canajoharie, a length of ten and one-tenth miles, and the width of the channel or excavated prism was to be 200 feet, and the channel was to be excavated to a grade line fixed by the plans which would afford a flotation depth of water of at least 12 feet when water was maintained at designated pool elevations. The claim as filed specifies ten items of complaint upon each of which it asks judgment. In considering these items I shall refer to them as described and numbered in the state's brief, as they are not separately stated and numbered in the formal claim as filed. Upon the trial item 2, alleged in the 8th paragraph of the claim as "Excavation flattening slopes, etc., 9893 cu. yds.," amounting to $6,311.63; item 3, alleged in said 8th paragraph as " Excavation necessary for placing 4th class rip-rap, etc., 5820 cu. yds.," amounting to $3,713.16; item 4, alleged in said 8th paragraph as "Excavation necessary for placing cobblestone protection, etc., 8085 cu. yds.," amounting to $5,158.23; item 5, alleged in paragraph 9 of the claim and being for fourth class rip-rap not allowed by the state amounting to $66,609.38; and item 6, alleged in the 10th paragraph of the claim for cobblestone protection not allowed by the state, amounting to $39,626, were abandoned and withdrawn by claimant, and as all of these items are for work not called for by the contract and not embraced in any alteration contract or extra and unspecified work order as required by section 6 of chapter 147, Laws of 1903, they should be dismissed. Upon the trial claimant also abandoned and withdrew that part of item 7, alleged in the 11th paragraph of the claim, which claims damages for the alleged "increased cost of excavation and disposal of Misc.] Court of Claims, May, 1920. material because of delays while plant was unable to float," amounting to $52,801.56, stating that this damage is included in another item of the claim. It should, therefore, be dismissed. This leaves the following items to be considered, viz., item 1, part of item 7, and items 8, 9 and 10. Item 1 is, as alleged in the 8th paragraph of the claim for "excavation of siltration, 365,210 cu. yds.," which at the contract price, sixty-three and eight-tenths cents per cubic yard, would amount to $233,033.98. It was conceded upon the trial that the word "siltration" should have been "siltation," and that the term "excavation of siltation " means the excavation of silt and other loose material which has been washed into the excavated area after the original excavation of that area. With that understanding of the meaning of the item, there is no evidence in the record to support it. In fact, it was frankly admitted by claimant on the trial that it did not claim to recover under this item as excavation of siltation, but for excavation below the grade line shown on the plans made unavoidably necessary by the presence at and above the grade line of a large number of boulders and a considerable quantity of rock, conditions which it is claimed were not disclosed by the plans, as to which, claimant claims, the plans misrepresented the conditions to be encountered in excavating to the grade line, which made excavation to the grade line more troublesome and more expensive, and that a measure of the damage caused thereby might be the cost at contract price of the excavation below grade. Claimant cannot recover for this excavation at the contract price as excavation, because the material, if any, so excavated was outside of the excavation lines as shown on the plans, and it does not appear that the work was the subject of any alteration contract or Court of Claims, May, 1920. [Vol. 112. extra and unspecified work order (Laws of 1903, chap. 147, § 6), in addition to which the specifications expressly provide that no payment will be made for any excavation outside the lines shown on the plans. Empire Engineering Corporation v. State of New York, 1 State Dept. Rep. (unoff.) 326; Burgard v. State of New York, 17 State Dept. Rep. 1, 68, 70; O'Brien v. City of New York, 139 N. Y. 543. It is a sufficient answer to claimant's contention that it should recover on account of this item as damage for the alleged misrepresentation of the plans as to the character of material to be encountered to note that the item is not so pleaded in the claim, in addition to which there is another item in the claim for damages alleged to have resulted from such alleged misrepresentations and from breach of warranty as to the character of material to be encountered (item 9), which damages, it was conceded by claimant, include the damages claimed in item 1. The state moved upon the trial, at the close of claimant's case, for dismissal of item 1 on the ground that claimant had not proven, with reference to it, facts sufficient to constitute a valid claim against the state. Decision of that motion was reserved. For the reasons indicated above, the motion should be granted and the item disallowed and dismissed, and an exception on behalf of claimant noted. The part of item 7 which remains undisposed of is alleged in the 11th paragraph of the claim and is for damages claimed as the result of the state's breach of its contract to complete the construction of the Fort Plain dam during the year 1909, as a result of which claimant was obliged to dredge a channel for the flotation of a part of its plant from the St. Johnsville bridge westerly to Mindenville, to claimant's damage in the sum of $17,752.75. The state claims. Misc.] Court of Claims, May, 1920. there was no such contract. Claimant urges the agreement is found in paragraph 24-S of the special specifications, which reads in part as follows: "The retaining dam at Mindenville has been completed and it is expected that the dam at Fort Plain will be completed during 1909 and possibly the dam at Canajoharie also." The Fort Plain dam was not completed until about October 1, 1911, and claimant did, in the late fall or early winter of 1910, excavate a channel to float a part of its plant from St. Johnsville bridge to Mindenville lock to store it there for the winter. The state did not warrant or agree that the Fort Plain dam would be completed during the year 1909. It expressed a hope or expectation merely that it would be so completed. Had a positive agreement or warranty been intended, the words "agreed " or warranted" would have been used. The construction of the dam was, as it was required by law to be, the subject of another contract, liable to the delays, hindrances and interruptions which frequently disappoint expectation with respect to construction work. The word "expected " was, therefore, used advisedly and intelligently and expressed exactly the under standing of both parties. Acting upon this understanding of the provision in question, Mr. Japp, claimant's director and managing engineer, prior to signing the contract, visited the site of the dam contract, observed the state of progress thereon and concluded that its completion. during the year 1909 was within reasonable expectation. Why it was not completed does not appear, hence it does not appear that the failure to complete it was due to any act or omission of the state. Moreover the excavation for which it is here sought to charge the state was done for the benefit of claim |