APPEAL by the defendant, The City of New York, 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 23d day of July, 1909, upon the verdict of a jury, and also from an order entered in said clerk's office on the 19th day of July, 1909, denying the defendant's motion for a new trial made upon the minutes.
Terence Farley, for the appellant.
Edward M. Grout, for the respondent.
The plaintiff was a contractor with the city of New York for the improvement of the East Branch reservoirs, constituting a part of the city's water system. The work included the raising of the spillway of the dam, raising and building the side walls of the spillway, some excavation and paving, and the building of stone fences. The work was completed to the satisfaction of the department having it in charge on January 2, 1906, and a final certificate given, upon which the final payment (excepting the retained repaving security) was made on February 28, 1906.
Gearty v. Mayor, etc.,
171 N.Y. 61; Lentilhon v. City of New York, 102 A.D. 548; affd., 185 N.Y. 549; Borough Construction Co. v. City of New York, 200 id. 149.)
The circumstances giving rise to this action are briefly as follows: On July 8, 1903, the city of New York by its department of water supply, gas and electricity, invited proposals for bids for doing the work referred to. The advertisement stated in general terms the character, nature and extent of the work to be performed and informed intending bidders that forms of bids together with a copy of the contract and specifications could be obtained on application at the office of the chief engineer 'where plans and drawings which are made a part of the specifications may be seen.'
The plaintiff, through his engineer and superintendent of construction, obtained a copy of the contract and specifications, examined the ground upon which the work was to be performed, and applied at the office of the chief engineer to be allowed to examine the contract drawings. At this point there arises a conflict in the testimony. The plaintiff's engineer and superintendent allege that they were shown only a single plan, of which a copy was put in evidence, and marked Exhibit G, by which name for convenience it will hereafter be mentioned. This plan contains an outline of the work to be done, with an indication of the character of work at different places, but exhibits no detail of the manner in which the several classes of work are to be performed. Other plans were prepared by the department and used by the engineers in charge of the work, which in addition to the general plan and outlines exhibited on Exhibit G, also contained graphic illustrations of the details of different classes of work. These plans came to be known in the case as Exhibits 3-C and 3-D and will be so described hereinafter. The question whether or not plaintiff was shown Exhibits 3-C and 3-D before he bid was sharply contested and made the subject of a specific question put to the jury, which answered that he had not. The evidence in our opinion justified this answer. It must, therefore, be accepted as a settled fact in the case that when plaintiff bid he had before him only the contract, specifications and a plan of which Exhibit G is a copy. While this plan did not show all the details of the work
to be performed the specifications were very full and we see no reason why an experienced bidder with these specifications and this plan before him could not intelligently bid upon the contract. If so there was no reason why he should seek for any more detailed plan than that which was exhibited to him at the chief engineer's office where the advertisement directed him to apply. So long as a prospective bidder applies at the office to which he was directed to apply for an inspection of the plan, and is there shown a plan which, read in connection with the specifications, sufficiently describes the work to be done, and is given no hint or suggestion that there are other more detailed plans in existence, he is, in our opinion, justified in submitting a bid based upon the specifications which he has received and the plan which he has been shown. This is what plaintiff did, and there would probably never have been any question about the work to be performed were it not for the fact that the more detailed plans Exhibits 3-C and 3-D differed from the specifications in that as to certain items of work they called for a more expensive method of construction than was called for by the specifications. The engineers in charge of the work insisted that it should be done as required by the plans Exhibits 3-C and 3-D. The plaintiff protested that his contract only required him to comply with the specifications; but finding his protests unavailing, he yielded and completed the work as required by the engineers. His action is for additional cost of the work in consequence of the insistence of the engineers that it should be done according to the details shown in Exhibits 3-C and 3-D, and not according to the specifications. Assuming, as we do, that the jury were right in finding that Exhibits 3-C and 3-D were not shown to plaintiff until after he had made his bid, he was justified in ...