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THIRD DEPARTMENT, SEPTEMBER TERM, 1903.

[Vol. 86.

city, whose decision shall be final and conclusive, subject to revision by the board of water commissioners of the city, the failure of the board of water commissioners to act on the decision of the superintendent of the water works for more than three months after the matter has been referred to such board, constitutes an unreasonable delay and justifies the contractor in bringing an

action to recover the amount which he claims to be due him under the contract. When the contract contains a provision that no extra work shall be paid for

unless such work be done upon the written order of the engineer, a written order made by the engineer pursuant to this provision of the contract, directing the contractor to sheath a trench, entitles the contractor to recover extra compensation for additional excavation and concreting which the sheathing of

the trench rendered necessary. Where the contract provides that the contractor shall “perform all the work con

tracted for as specified in this contract, but any alteration in the form, dimensions, location or manner of doing the work ordered in writing by the engineer, shall be made as directed,” the contractor, in the absence of a written order from the engincer, is not bound to alter the manner of doing the work nor can

he recover extra compensation in case he does so. The contractor is not entitled to recover extra compensation for repairing dam

ages resulting from the excavation being flooded, without fault on his part, by a freshet in the Hudson river, where the contract contained a provision requiring the contractor to keep the excavation clear of water from whatever source, and also required the contractor to repair, at his cost, any damages which the materials or work might sustain from any source or cause whatever before its

acceptance. Quære, where the contract contains a provision that no claim for extra work

shall be allowed unless such claim be filed within a certain time after the extra work is performed, whether, if the engineer specifically allows a claim for extra work which has not been filed as required by the contract, the city

will be deemed to have waived the provision as to filing. Where a motion made at the opening of a case to dismiss the complaint on the

ground that it does not state facts sufficient to constitute a cause of action is denied with leave to renew such motion, if the defendant fails, in motions subsequently made by him for the dismissal of the complaint, to specify the insufficiency of the pleading as one of the grounds of such motions and also neglects to object to evidence introduced as not being within the pleadings, he must be deemed to have waived the objection that the complaint did not state a cause of action, so far as to authorize the trial court, if the evidence given upon the trial warrants a judgment for the plaintiff, to amend the complaint to conform to the proof; in such a case the power to amend the complaint may be exercised by the Appellate Division upon an appeal from a judgment in favor of the plaintiff, if it is necessary to do so in order to sustain the judgment.

APPEAL by the defendant, The City of Albany, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office

App. Div.]

THIRD DEPARTMENT, SETEMBER TERM, 1903.

of the clerk of the county of Albany on the 19th day of November, 1902, upon the report of a referee.

The action is brought to recover for work performed and materials furnished to the city of Albany in putting in a steel conduit, four feet in diameter, from the filtration beds of the city to the pumping station on Montgomery street. The length of the conduit was to be 7,900 feet. It extended across the flats for about 500 feet, then in the bottom of the Erie canal 5,253 feet, and then 1,937 feet in Montgomery street. The plaintiffs, being the lowest bidders, were awarded the contract. The work was performed and accepted by the : city and certain payments made thereupon as the work progressed. This action was brought for a balance claimed to be due upon the contract, and the referee has found that upwards of $45,000 remains' due and unpaid, and for that sum, with interest and costs, judgment has been entered, from which this appeal is taken. Further facts appear in the opinion.

Arthur L. Andrews, for the appellant.

John S. Wolfe and Lewis E. Carr, for the respondents. Smith, J.:

This judgment is assailed upon three principal grounds : First, that under the contract under which the work was performed the engineer was made the sole arbiter of all questions arising thereunder, and that the plaintiffs are conclusively bound by his adverse decision upon their claims; second, that the complaint does not state facts sufficient to constitute a cause of action; third, that aside from the stipulation in the contract to submit all claims to the engineer for arbitration, the evidence upon the trial does not justify the conclusion of the referee.

First. By the 3d paragraph of the contract it is agreed “that the engineer shall in all cases determine questions in relation to the work and the construction thereof; and he shall in all cases decide every question which may arise relative to the execution of this contract, on the part of the said contractor; and his estimate and decision shall be final and conclusive upon said contractor, and such estimate and decision, in case any question shall arise, shall be a condition precedent to the right of the contractor to receive any money

THIRD DEPARTMENT, SEPTEMBER TERM, 1903.

(Vol 86.

*

under this contract, and a condition precedent to the commencement of

any action by the said contractor to recover any moneys under this contract, or any damages on account of any alleged breach thereof." By paragraph 103 it is agreed “that the engineer shall in all cases determine the amount or quantity of the several kinds of work which are to be paid for under this contract and the amount of compensation to be paid therefor.

By paragraph 115 of the contract it was agreed " in case of any misunderstanding or disagreement between the engineer and the contractor in regard to making up the final accounts of work of said contract, the said accounts shall be referred by either of the said parties to the superintendent of the water works, who shall examine the same and decide whether it is made up according to the strict terms of the specifications and contract, and just and reasonable amounts and prices for all work done and materials that may have been furnished, and for all necessary extra work that shall have been ordered done, by the party of the first part; and his decision shall be final and conclusive, subject, however, to revision by the board of water commissioners before the same is paid."

Pursuant to these provisions of the contract, the engineer did make up his final estimate by which there was found due to the plaintiffs the sum of about $12,000. Thereupon an appeal was taken to the superintendent of the water works, who examined the same, and approved the same with some slight modifications. Thereupon an appeal was taken to the board of water commissioners, before whom the matter was presented upon the 26th of May, 1899.

No action was taken thereupon prior to September 5, 1899, when this action was brought. The referee has found that the board of water commissioners unreasonably delayed action upon said appeal, and that such delay authorized the commencement of this action.

It is urged, however, that the attorney for the plaintiffs requested delay. There were six meetings of the board between the meeting of May twenty-sixth, when this matter was presented, and September fifth, when this action was brought. There is no proof that a single day's delay within that period was caused by the act of the plaintiffs or their attorney. It may be that the delay from September fifth to October seventeenth, when the board did act, was caused by the request of the plaintiffs' attorney. Unless the delay, however,

App. Div.]

THIRD DEPARTMENT, SEPTEMBER TERM, 1903.

from May twenty-sixth to September fifth was unreasonable, this action cannot be maintained.

The referee has found this delay to have been unreasonable. We are inclined to think this finding is sustained. It is a matter of serious importance to these contractors that the amount of their claim be determined, and complete inaction from the twenty-sixth of May to the fifth of September shows such a disregard of their rights in the premises as may well justify the condemnation of the court.

Under the different sections of the contract, read together, it appears that submission was not alone to the engineer, but by his judgment, as approved or modified upon appeal by the superintendent of the water works, and, upon appeal from his decision, by the board of water commissioners, the plaintiffs were to be bound. His decision was in substance approved by the superintendent.

If the board of water commissioners, however, upon an appeal from the superintendent should refuse absolutely to consider the plaintiffs' appeal, it is clear that the plaintiffs cannot be deprived of their right of action. Moreover, if that board, through unreasonable delay, has refused to act, the plaintiffs were not bound to wait upon their convenience. By the unreasonable delay of the city itself, acting through its water board, the remedy provided for in the contract has been made ineffective, whereupon the court will intervene to give the plaintiffs such rights as they may establish by their proofs.

Second. The defendant further urges that the complaint does not state facts sufficient to constitute a cause of action. At the opening of the case a motion was made by the defendant's attorney to dismiss the complaint as not stating facts sufficient to constitute a cause of action. This motion was denied at that time with leave to

At the end of the plaintiffs' evidence a motion was made for a dismissal of the complaint, but the insufficiency of the pleading was not included as one of the grounds upon which the motion was made. Moreover, the motion itself recognized the right of the plaintiffs to some recovery in the action. At the end of the case a motion was made to dismiss the complaint, but not upon the ground that the complaint did not state facts sufficient to constitute a cause of action. The evidence was nowhere objected to as not within the

renew.

THIRD DEPARTMENT, SEPTEMBER TERM, 1903. [Vol. 86. pleadings. After a denial of the motion at the beginning of the case with leave to renew, the failure to include this ground as one of the gronnds for the dismissal of the complaint in motions later made, and the failure to object to evidence introduced as not within the pleadings, would seem to constitute a waiver of that objection so far that the court would be authorized, if the evidence upon the trial warranted the judgment, to amend the complaint to conform thereto. And this may be done by this court upon this appeal if necessary to sustain the judgment. It is unnecessary, therefore, to determine whether the complaint states sufficient ground for disregarding the determination of the engineer upon the several matters involved herein and for appealing to the court in disregard of the tribunal stipulated in the contract.

Third. The issue is finally reduced to the contention of the defendant that the amount of the recovery is in excess of that shown by the evidence to be the plaintiffs' right. The consideration of this branch of the case requires examination of the different items. One item — and it appears to be the main item upon which recovery

has been allowed - is for extra excavation made and extra concrete furnished by reason of the enlargement of the ditch, clained to be necessary by the order of the engineer that the same should be sheathed. The original plans called for a ditch six feet wide at the top of the pipe. This pipe was about four feet in diameter. This trench was for almost the entire length built some part of it under the water line of the Hudson river. The dirt was, therefore, water soaked and loose. It became necessary, in order to properly lay this pipe, that the trench be sheathed so as to sustain the walls of the trench while the pipe was placed. This sheathing was put in by placing two-inch planks against the carth. To hold these planks in position three longitudinal braces were used, four inches by six inches, and outside of these longitudinals were placed vertical beams six inches by six inches. This was shown to be the usual way of sheathing a trench. It is easily seen, however, that with this sheathing this placed and supported the six-foot ditch would be narrowed to four feet or less, and in practical working it was found impossible, after the sheathing was thus placed, to lay the pipe therein. It was found necessary to enlarge the ditch one foot where the sheathing was put in, and in some places, where larger

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