BONEY BROCKWAY and JOHN A. SQUIRES, Respondents,
THE CITY OF UTICA, Appellant.
APPEAL by the defendant, The City of Utica, from a judgment of the County Court of Oneida county in favor of the plaintiffs, entered in the office of the clerk of said county on the 31st day of December, 1910, upon the verdict of a jury, and also from an order entered in said clerk's office on the same day denying the defendant's motion for a new trial made upon the minutes.
William Townsend, for the appellant.
P. H. Fitzgerald, for the respondents.
On the 29th day of September, 1906, the plaintiffs as copartners entered into a written agreement with the defendant
whereby they agreed to remove the ashes, rubbish, etc., from the streets of the city. The contract was to continue for the term of five years from October 1, 1906, and the plaintiffs were to be paid for the entire service $53,500, in monthly payments of $891.67.
The contract provided that occupants fronting on streets or alleys should place their material to be removed in receptacles which the contractors were to handle carefully, and if any were broken or damaged through their carelessness the amount of such damage was to be deducted from the money their due by the terms of the agreement, and the decision of the city engineer as to the amount of the damage was to be final as to the contractors.
Section 18 of the contract reads as follows: 'It is further understood and agreed that a sum of Two Dollars ($2.00) may be deducted by the City Engineer from the moneys owing or becoming due the contractor for each failure to do the work described above. The above-mentioned two dollars ($2.00) to be the amount deducted for failure to do the work required in each and every individual instance. It is distinctly understood that the sum of two dollars ($2.00) is to be considered as liquidated damages, and in no event as a penalty. If the contractor should feel himself aggrieved by the action of the City Engineer in inflicting any of the deductions prescribed in this article, he may appeal to a Board consisting of the Chairman of the Committee on Public Improvements, the Corporation Counsel and the President of the Common Council, and the decision of this Board, or a majority thereof, shall be final as to the contractor.'
While the contractors were engaged in the work complaints were made from time to time of their failure to fulfill their agreement. These complaints were by the occupants who had placed receptacles in the streets containing ashes, dirt, etc., to be carried away. The manner of procedure in vogue was for the occupant to lodge a complaint with the department of public works, and each charge of dereliction was noted in a complaint book kept in the office for that purpose, and a duplicate of the charge was delivered to the inspector representing the city, who investigated each complaint and returned a written report to the department which was kept on file.
Each month the contractors presented to the commissioner of public works a verified statement for the sum of $891.67. Upon this statement a written indorsement was made of the number of failures, if any, and of what they consisted, and a deduction was made and the warrant prepared for the corrected sum, and upon payment they signed a receipt on the back of the warrant in settlement of the claim. The first deduction was made for the month of February, 1908, and was for the sum of $34. Some discussion over this charge was had between the plaintiffs and the superintendent of public works. Thereafter each month including July, 1909, deductions were made by reason of the complaints presented and sustained by the department of public works, until they aggregated $152. The plaintiffs accepted the sum paid each month without protest, and did not present any claim to the city until December 30, 1909. The commissioner of public works from time to time called the attention of the plaintiffs to the complaints made, informing them they would be charged for each failure, and they were also occasionally advised by the inspector that he had discovered ashes or rubbish which had not been removed as the contract provided.
The plaintiffs knew each time they received a warrant or draft that their monthly installment was less than the full contract price, and were cognizant of the reason for the deduction. Their acceptance of the money was an acquiescence in the correctness of the deductions made by the department of public works. They understood the mode of procedure obtaining in the department of public works relative to the performance of their contract, of the investigations made of the complaints presented and of the reports turned in by the inspector. They had ample opportunity to test the correctness of the reports each month. They apparently never impugned their accuracy or truthfulness. They never appeared before the city engineer to present evidence in disparagement of the reports filed, or appealed to the board provided for as final arbiters by section 18 of the contract ...