Opinion
Argued February 6, 1985
Decided March 19, 1985
Appeal from the Appellate Division of the Supreme Court in the Second Judicial Department, Alfred S. Robbins, J.
Irving B. Lampert for Albert Saggese, Inc., and Anthony Rivara Contracting Co., Inc., a joint venture, respondent-appellant.
Edward Alan Shure for Royal Indemnity Company, appellant-respondent.
Gary M. Schwartz, Arthur W. Jaspan and A. Thomas Levin for respondent.
MEMORANDUM.
The order of the Appellate Division should be modified by providing that, on its second cause of action against the joint venture and its third counterclaim against the town, Royal shall have judgment against the town in the amount of $54,060 and payment of that amount to Royal shall extinguish the town's obligation on the award of judgment in that reduced amount to the joint venture and, as so modified, order affirmed, with costs to the town against the joint venture and Royal. The weight of the evidence comports with the conclusion that the items claimed as extras, other than the additional pile lengths, resulted from plaintiff's failure adequately to gauge the cost of performance or from changes made as an accommodation to plaintiff and at its request rather than as a result of mutual mistake or of any fundamental change in the contract ordered by the town or its engineer. Modification is, however, required because the surety, as assignee of mechanic's lienors paid by it on plaintiff's behalf, rather than the plaintiff, is entitled to such moneys as may be due from the town.
Chief Judge WACHTLER and Judges JASEN, MEYER, SIMONS, KAYE and ALEXANDER concur.
Order modified in accordance with the memorandum herein and, as so modified, affirmed, with costs to the town against the joint venture and Royal.