APPEAL by the defendants, Minnie A. Indelli and another, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of New York on the 19th day of October, 1910, upon the verdict of a jury, and also from an order entered in said clerk's office on the 24th day of October, 1910, denying the defendants' motion for a new trial made upon the minutes.
Charles G. F. Wahle, for the appellants.
Mortimer M. Menken, for the respondents.
The plaintiffs were copartners engaged in the business of excavating for foundations in the city of New York, and the defendants were general contractors and had taken a contract from the owners of premises on Longwood avenue, Kelly and Beck streets, in the borough of the Bronx, for the excavation for and the construction of a foundation for a building to be erected thereon. On the 24th day of December, 1908, the plaintiffs entered into a contract in writing with the defendants, by which they evidently intended to sublet to plaintiffs the excavation work. Plaintiffs, however, contend that only part of the excavation work was included in their contract. The part of the contract most material to a decision of the
questions presented by the appeal is the 1st clause, which is as follows:
'That the said parties of the second part herein hereby agree to do all the excavating and blasting of all the rock and stone on the plot 200'x110', said premises being 200 feet on the south side of Longwood avenue, and being 110' on Kelly street, and 110 feet on Beck street, in the Borough of Bronx, city of New York, to the depth of 8 feet 6 inches below the curb, of the entire plot, according to the plans of the owner of the said premises, subsequently to be shown.'
The plans of the owner, to which the contractor refers, provided not only for the excavation of the entire plot of the dimensions stated in the contract, and to the depth therein stated, but to a depth in the main of about six inches more, and further for excavation work connected therewith or necessary for the construction of the foundation for the building, as follows: First, for an areaway on Longwood avenue two hundred feet in length by seven feet in width to the depth of nine feet; second, an areaway on Kelly street seven feet in width, thirty-seven feet in length and nine feet in depth; third, an areaway on Beck street of the same dimensions; fourth, two boiler pits thirty-three feet in length by eighteen feet in width and five feet deep, and of a depth from the highest point of the curb adjacent to the premises, one, eighteen feet and ten inches, and the other, fourteen feet ten and three-eighths inches; fifth, two elevator pits six by seven feet, four feet deeper than cellar bottom; andsixth, for certain trenches for foundation walls.
The plaintiffs also excavated two feet beyond the rear line of the premises described in the contract for the width of two hundred feet and to the depth of ten feet. This, however, was not required by the plans, and the question as to whether it was authorized by the defendants was properly submitted to the jury, and we find no error with respect to this item.
The action is brought to recover a balance claimed to be due on the contract, and for the excavation work below the depth of eight and a half feet and beyond the precise description given in the contract as for extra work. The court ruled as matter of law that this was all extra work, and that the plaintiffs were entitled to recover as compensation therefor the
reasonable value of doing the work, which was not governed by the contract price. It was claimed on the part of the plaintiffs, and evidence was given tending to support that view, that they did not see the plans until about the middle of May, 1909, when they had substantially finished the work of excavating the plot of ground of the dimensions specified in the contract to the depth thereby required, and that it was much more expensive to them to go back and excavate these areaways and to the greater depth than if they had known that it was required at the outset when they could have done it in connection with the main excavation, and that then it was agreed on the part of the defendants that they should do the other excavating as extra work and be paid therefor accordingly. On the part of the defendants this evidence was controverted, and evidence was offered tending to show that before or at the time the plaintiffs commenced the work, which the evidence of the plaintiffs indicates was on the seventh and the evidence of the defendants tends to show was on or about the 3d day of January, 1909, a copy of the plans, to which the contract refers, showing that all of this work with the exception of a strip two feet in width in the rear of the plot was required, was delivered to one of the plaintiffs and by him delivered to their surveyor; that the original plans were in the toolhouse and accessible to plaintiffs during all of the time, and that plaintiffs proceeded with the work in their own way and without any interference on the part of the defendants, and that considerable of the work, for which a recovery has been had on the theory that it was extra work, was done by the plaintiffs long prior to the middle of May, 1909, at which time they claimed to have first seen the plans, and that they accepted and received pay therefor, without protest, on ...