APPEAL by the plaintiff, the Williams Engineering and Contracting Company, from so much of an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 21st day of September, 1911, as releases the city from a stipulation and sets aside an order of reference.
L. Laflin Kellogg of counsel [Kellogg & Rose, attorneys], for the appellant.
Terence Farley of counsel [R. Percy Chittenden with him on the brief],Archibald R. Watson, Corporation Counsel, for the respondent.
In December, 1903, the Williams Engineering and Contracting Company, a partnership composed of three men, John Williams, James H. Holmes and James F. Kennedy, bid for and obtained a contract for certain work on the Blackwell's
Island bridge. They had filed a certificate of intention to do business under the name chosen, and in the acknowledgment of the contract appears: 'Before me personally came John Williams, to me known and known to me to be the president and one of the partners of the Williams Engineering & Contracting Company, who being by me duly sworn did say for himself as follows: The said John Williams that he is one of the partners of said company and a member of said firm, and that he signed the foregoing contract for and on behalf of said firm and acknowledged that he executed the same for the purposes therein mentioned, for said firm.'
In June, 1904, the firm formed itself into a corporation under the same name and, it is claimed, assigned the contract to the corporation. It is further claimed that said assignment was approved by the commissioner of bridges. It proceeded with the work, but thereafter the bridge commissioner determined to change the plans by eliminating a very considerable portion of the work contemplated by the original contract, mainly consisting of elevators and power stations on the Blackwell's Island piers. A controversy arose as to the amount of damages for the taking away of this portion of the work, and also a claim for damages for delay caused by the city.
On August 6, 1909, a supplemental agreement was entered into which, after reciting the contract, contained the following: 'Whereas, the party of the first part is desirous of withdrawing from the performance of the said contract a large portion of the work called for thereunder, to wit, the erection of four elevator towers, two power houses and certain other work which need not be specifically mentioned, and the party of the second part is unwilling to allow the said work to be withdrawn, and has protested against the withdrawal of the same, and claims damages therefor as well as other damages in connection with the said contract; and whereas, there remains unpaid under the estimates on this work, including retained percentages, the sum of $21,909.25, and additionally unpaid the amount of $6,500, covered by Commissioner's order of January 8, 1907, making a total amount of $28,409.25; and whereas, the parties hereto are desirous of avoiding delay in the prosecution of the work or unnecessary expense of litigation.
Now, Therefore, This Agreement Witnesseth: That the party of the second part, without waiving its rights to the damages for work taken away as hereinbefore referred to, hereby agrees to perform the following amount of work at the following agreed prices, to wit: 1842 cubic yards of cut granite, at $55.00; 2072 cubic yards concrete at $15.36 per cubic yard. New York Anchor Pier complete, $2500; Queens Anchor Pier complete, $3200. All under the conditions and changes in reference of the work as they now exist. * * * The party of the second part is to be paid therefor in the manner and form and upon the certificates as set out in the original contract. That the party of the first part hereby agrees to pay to the party of the second part immediately upon the execution of this agreement * * * the sum of $28,409.25, being composed of the sum of $21,909.25, the retained percentage, and $6500 Commissioner's order above referred to. * * * It is further stipulated and agreed as a consideration of this agreement that the City of New York, its officers and agents will co-operate with the party of the second part to procure an immediate and early trial and determination of the alleged claim for damages under said contract above referred to, which claim is not conceded by the party of the first part. By and with the consent of the Counsel for the Corporation of the City of New York, whose approval it is understood has already been obtained, the party of the first part will consent to a reference for the trial of the same, the referee to be agreed upon between the parties hereto. It is further agreed that this supplemental agreement shall not be considered a waiver of the rights of either party, of the one against the other, for any subject or matter not stipulated herein, nor to modify or change the rights of either party under the original contract.' This was signed on behalf of the city by the commissioner of bridges, was approved as to reasonableness of prices by the chief engineer and the deputy and acting comptroller, and as to form and substance by the acting corporation counsel.
A summons and complaint, verified on the 13th of October, 1909, was served, the 1st paragraph of which set forth that the plaintiff is a domestic corporation, and the 3d that heretofore and on or about the 31st day of December, 1903, the plaintiff
and the defendant duly made and entered into a certain contract in writing. The original answer is not in the record. On December twenty-eighth the attorneys for the plaintiff and the corporation counsel signed a stipulation to refer to MacGrane Coxe, Esq., all the issues in the action to hear, try and determine the ...