APPEAL by the plaintiff, The Asphalt Paving and Contracting Company, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 23d day of November, 1910, upon the verdict of a jury, and also from an order entered in said clerk's office on the 21st day of November, 1910, denying the plaintiff's motion for a new trial made upon the minutes.
L. Laflin Kellogg, for the appellant.
Terence Farley, for the respondent.
On June 24, 1896, a contract in writing was executed between the mayor, aldermen and commonalty of the city of
New York, parties of the first part, and the Warren-Scharf Asphalt Paving Company, party of the second part, for the regulating and paving with asphalt pavement, on the then existing pavement, of the carriageway of First avenue from Twentieth street to One Hundred and Ninth street (with certain exceptions) in the city of New York. The contractor, in consideration of the price to be paid it for the work, agreed among other things that it would 'maintain the said work in good condition, to the satisfaction of the commissioner of public works, his successor or successors, for the period of fifteen years from the final completion and acceptance thereof.' Among the provisions of the contract was the following:
'SECURITY TO BE RETAINED FOR REPAIRS.
'14a. And it is further agreed that if, at any time during the period of fifteen years from the date of the acceptance by said Commissioner of the whole work under this agreement, the said work, or any part or parts thereof, in the opinion of said Commissioner, require repairs or sanding, as provided for in Section 8, or the surface of the pavement shall have any cracks, bunches, holes or depressions that shall measure more than 1/2 inch from the under side of a straight edge 4 feet long laid on the surface, and the said Commissioner shall notify the said party of the second part to make the repairs or do the sanding as required, by a written notice to be served on the contractor either personally or by leaving said notice at his residence or with any of his agents in charge of the work, or employees found on the work, the said party of the second part shall immediately commence and complete the same to the satisfaction of said Commissioner; and in case of failure or neglect on his part so to do within twenty-four hours from the date of the service of the aforesaid notice, then the said Commissioner of Public Works shall have the right to purchase such materials as he shall deem necessary, and to employ such person or persons as he may deem proper, and to undertake and complete the said repairs or sanding, and to pay the expense thereof out of any sum of money due the contractor, or retained by the said party [parties] of the first part as hereinafter mentioned. And the parties of the first part hereby agree upon the expiration of the
said period of fifteen years, provided that the said work shall at that time be in good order or as soon thereafter as the said work shall have been put in good order to the satisfaction of the said Commissioner, to pay to the said party of the second part the whole of the sum last aforesaid or such part thereof as may remain after the expenses of making the said repairs in the manner aforesaid shall have been paid therefrom.'
The amount withheld by the city to protect itself against default by the contractor in his agreement to keep the work in repair was fixed by the following paragraphs of the contract:
'PAYMENTS WHEN MADE.
'23. And the said party of the second part further agrees that he shall not be entitled to demand or receive payment for any portion of the aforesaid work or materials until the same shall be fully completed in the manner set forth in this agreement, and such completion shall be duly certified by the Engineer, Inspector and Water Purveyor in charge of the work and until each and every of the stipulations hereinbefore mentioned are complied with and the work completed to the satisfaction of the Commissioner of Public Works and accepted by him; whereupon the parties of the first part, under Chapter 475, Laws of 1895, will pay and hereby bind themselves and their successors to pay to the said party of the second part in cash on or before the expiration of thirty days from the time of the completion of the work and the acceptance of the same by the Commissioner of Public Works, seventy per cent of the whole of the moneys accruing to the said party of the second part under this agreement, and the balance of the moneys that may be due to said party of the second part under this agreement as follows: Three per cent of the whole amount of money accruing to said party of the second part on the expiration of the sixth year and a like further sum of three per cent at the expiration of each succeeding year thereafter until the whole or as much as may remain due of said contract price shall be paid should the party [parties] of the first part perform the work stipulated under Section (14a) of this agreement.'
The Warren-Scharf Asphalt Paving Company ...