PENNSYLVANIA STEEL CO.
Appeal from Trial Term, New York County.
Action by the Pennsylvania Steel Company against Henry M. Susswein. From a judgment for plaintiff, and, from an order denying defendant a new trial, he appeals. Modified and affirmed.
[117 N.Y.S. 437] Alton B. Parker, for appellant.
H. Snowden Marshall, for respondent.
Argued before INGRAHAM, McLAUGHLIN, HOUGHTON, CLARKE, and SCOTT, JJ.
On the 9th of October, 1906, the defendant was the owner of a tract of land in Long Island City fronting on the East River and immediately adjacent to land acquired by the city of New York for the so-called Blackwell's Island Bridge, which the plaintiff was constructing. On the date mentioned it entered into an agreement in writing, modified by two supplemental agreements, with the defendant, by which he leased to it for a term of two years a portion of the land owned by him. In consideration of the lease the [117 N.Y.S. 438] plaintiff agreed to build within three months a crib dock upon the premises leased and the adjacent premises belonging to the defendant, according to certain plans and specifications which were annexed to the contract. It was to belong to the defendant, who agreed to pay to the plaintiff $3,500 in cash " upon the completion of said dock." The plaintiff further agreed " to make the necessary fill inside of said crib from the upland and to grade the remainder of said land from Vernon avenue to said dock." This action was commenced on the 13th of June, 1907, the complaint alleging that the plaintiff had duly constructed the dock, and that the defendant had refused to pay the agreed price, for which judgment was demanded. The answer contained certain denials, and alleged as a counterclaim that the plaintiff had not constructed the dock according to the contract in specified particulars, and had failed to grade the land from Vernon avenue to the dock. The jury rendered a verdict in favor of the plaintiff for the amount claimed and against the defendant on his counterclaim. From the judgment entered thereon, and an order denying a motion for a new trial, defendant appeals.
The contract provides in express terms that:
" The said Henry M. Susswein agrees on his part to pay to the Pennsylvania Steel Company in further consideration the sum of thirty-five hundred (3500) dollars in cash upon the completion of said dock."
The defendant, therefore, was obligated to pay to the plaintiff the sum of $3,500 when the dock was completed, irrespective of plaintiff's covenant to do the grading and filling. This was the construction placed upon the agreement by the trial court, and from the instruction to the jury to this effect no exception was taken. The dock was constructed for the plaintiff by the Edward B. Jenks Company, and, before plaintiff paid such company, it requested the defendant to look it over, and see whether or not it was satisfactory. The defendant did so, and thereafter plaintiff wrote him, saying:
" We understand that you and your representative, Mr. Hunt, looked over the dock built by Edward B. Jenks Company at Ravenswood, and that you have agreed to give formal acceptance of this work providing we wrote you, and, in order that our contract with the Jenks Company can be closed as early as possible, we would appreciate a prompt reply."
On the 11th of March the defendant answered the letter, saying, among other things:
" I am in receipt of your favor of the 8th, and in reply desire to advise you that the writer, as well as Mr. Hunt, looked over the crib and we find same to be satisfactory."
Hunt, referred to in this letter, was a dock builder employed by the defendant to see that the work was properly done. The plaintiff, after the receipt of this letter, paid the Jenks Company for constructing the dock. The defendant, having notified the plaintiff that he found the dock " to be satisfactory" and plaintiff having acted on that notification and paid the Jenks Company, could not thereafter be heard to say that the dock was not completed according to contract, and for the reason that, when one asserts the truth of a fact to another and that party acts upon the statement, the party asserting the fact [117 N.Y.S. 439] cannot thereafter be heard to say that what he said was untrue, when the result of such statement would be to the prejudice or injury of the other party. Meeder v. Provident Assur. Society, 171 N.Y. 432, 64 N.E. 167; Payne v. Burnham, 62 N.Y. 69; Hobart v. Verrault, 74 A.D. 444, 77 N.Y.Supp. 483.Besides, there was sufficient evidence to justify the finding of the jury that the dock was completed according to the contract and the plans and specifications annexed to it.
Defendant's main contention in this respect is that the dock was not completed within the meaning of the contract until the necessary fill behind the crib work had been made, so that the dock could be used. Under the contract itself, I am of the opinion that this contention is not sound; but, assuming that it is, there was sufficient evidence to sustain the finding that at the commencement of this action the fill had been substantially completed. An engineer employed by the plaintiff testified that on June 13, 1907, the land behind the dock had been filled in to an elevation of five feet five inches above low-water mark, which was about a foot above high-water mark. This was apparently enough so that the dock could be used, and it, in fact, was used continuously by the plaintiff. Hunt, who had supervision of the work for the defendant, testified that in June, 1907, " it was fairly well leveled up.*** I did not see anything the matter so far as the fill was concerned." Irrespective, therefore, of the question that the defendant cannot be heard to say that the dock had not been completed at the time the action was commenced, I am of the opinion that the evidence justifies the finding that it had been, and by reason of that fact the defendant was liable for the $3,500, which he had agreed to pay when the dock was completed. If this conclusion be correct, then it disposes of the defendant's counterclaim so far as it relates to alleged defects in the dock. So far as it relates to plaintiff's alleged failure to do the grading and filling, it seems to me that no right to recover damages had accrued to the defendant at the time the action was commenced. The contract contained separate covenants as to the dock and the grading and filling. The dock had to be completed within three months, but no time was mentioned when the filling and grading was to be done. It therefore follows that the plaintiff might do this work any time before the termination of ...