APPEAL by the defendant, Michael Palladino, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 21st day of December, 1910, upon the verdict of a jury rendered by direction of the court, and also from an order entered in said clerk's office on the 20th day of December, 1910, denying the defendant's motion for a new trial made upon the minutes.
Herbert C. Smyth of counsel [Roderic Wellman with him on the brief], Wellman, Gooch & Smyth, attorneys, for the appellant.
Loyal Leale of counsel [Theodore Connoly with him on the brief], Archibald R. Watson, Corporation Counsel, for the respondent.
This action was brought on a bond given by the defendant the United Surety Company for the proper performance by the defendant Palladino of a contract with the city for loading and trimming deck scows and other vessels of the department of street cleaning under which he was to pay $1,507.25 a week in advance for thirty-two weeks for the privilege of sorting, picking over and appropriating certain of the refuse at the city dumps. A prior contract had been given to one Paoli and abandoned. The department of street cleaning readvertised and Palladino obtained the contract. A suit against Paoli and his surety upon the bond given by them resulted in a judgment for the city which was affirmed by this court and the Court of Appeals. (City of New York v. Paoli, 136 A.D. 939; 202 N.Y. 18.) Palladino paid the amount due for one week in advance and then abandoned the work.
Appellant claims that the plaintiff had breached the contract and that, therefore, he had a right to abandon. The proposal,
which is a part of the contract, stated as follows: 'The compensation to be paid to the city of New York by the Contractor must be stated at a price per week, in advance, for the privilege, and work at all the dumps and the incinerators of the department of street cleaning, in the borough of Manhattan, as enumerated below, viz., East Side dumps: Clinton Street, Stanton Street, Delancey Street Incinerator, East Twenty-ninth Street, East Forty-sixth Street, East Sixty-first Street, East Eightieth Street, East One hundred and seventh Street, East One hundred and thirty-ninth Street; West Side dumps: Canal Street, West Thirtieth Street, West Forty-seventh Street, West Forty-seventh Street Incinerator, West one hundred and thirty-fourth Street.' That is to say, twelve dumps and two incinerators.
The breach claimed was that several months before the execution of the contract the Forty-seventh street incinerator had been damaged by fire and that thus the city did not give Palladino the opportunity which it had promised him to make money from his refuse sorting and picking enterprise. It is admitted that while there was a dump at Forty-seventh street, this incinerator was out of order. It was stipulated on the trial that the disposition of the garbage was largely facilitated by the presence and use of an incinerator, and that on this particular dump the presence of an incinerator would be a financial advantage to the contractor. The city, while admitting the fact and making the said stipulations, claims that the defendant took no advantage by said fact, because the clause of the proposal following that enumerating the dumps provided as follows: 'Bidders must satisfy themselves by personal examination of the proposed work, and by such other means as they may select as to the quality, quantity and nature of the work to be done by the Contractor and the value of the privilege to him, and shall not at any time after the submission of a bid or estimate assert that there was any misunderstanding in regard to the same, and must take notice that under no circumstances whatever will rebates or refunds be allowed, or any deviation from the terms and conditions of the contract.'
I think the provision cited estops the defendant from claiming that there was any breach which authorized abandonment
by virtue of the fact that the incinerator was out of order. There was a dump at West Forty-seventh street, and there were besides thirteen other places for him to work at. It would seem that the contract was breached by him, not because of the incinerator being out of order, but because he found he paid too much for the job.
The second claim is that the contract was not advertised and relet as provided in paragraph F. After this second abandonment the commissioner made unsuccessful efforts to find another contractor, but, as the city refuse was accumulating, did not readvertise, but procured contractors by the week to trim and load the scows, and gave them the privilege of sorting and picking in order to get the stuff out of the way. Two contractors had abandoned the contract, and the accumulating refuse would become a menace to the public. The authorities ...