Opinion
November 29, 1949.
Appeal from Court of Claims.
The contractor, appellant's assignor, had a contract with the State of New York to construct a new highway adjacent to the east branch of the Ausable River in Keene Valley, Essex County, N.Y. A part of the highway was to be built on an embankment fill across low meadowland that was subject to seasonal inundations when the river overflowed its banks. The work was to be finished by December 1, 1935, but with the consent of the State operations were suspended November 1, 1935, until the following spring. The work was then about 77% completed. In March, 1936, the Ausable River overflowed one bank and the water impounded by the highway embankment rose above the level of the highway and damaged the same. Also channels which the contractor had previously excavated became partially refilled with sand and gravel bars. The contractor demanded a supplemental contract to provide compensation for restoration work, which the State refused to give. It was the claim of the contractor that the highway was improperly designed in that adequate drainage facilities were not provided for, and that this fault was the cause of the damage. When the State refused to execute a supplemental contract the contractor elected to consider the original agreement breached and filed a claim for damages on the basis of quantum meruit. The court below held that the highway was not improperly designed, and that the contractor was not justified in refusing to proceed with the work because of the dispute as to liability for the cost of restoration. It appeared that the damage caused by the flood was repaired by a successor contractor for a sum not exceeding $4,000 and the total work done to the date of suspension has a value of $221,516.43. The contractor was paid $170,519.25 directly, and the retained percentages, amounting to $50,977.18, were paid to creditors of the contractor, and to the successor contractor for excess costs. Judgment affirmed, without costs.
Under undisputed evidence and facts found by the court below, a breach of contract on the part of the State was disclosed as a matter of law. This occurred on or about April 16, 1936, when the State positively refused to give the contractor a supplemental contract for the performance of the extra work which was occasioned by the flood. At that time there is no evidence whatever but that the contractor was in the due performance of its contract. Actual work was at that time in suspension, due to seasonal reasons, by order of the State. That the flood occasioned extra work has been abundantly proven and seems clearly to have been found by the court below in its findings that the cost of its performance was not properly chargeable to the cost of completion. The findings that the highway was not improperly designed does not obviate the findings that the reperformance of the completed work, occasioned by the flood, was extra work. The flood was a matter which was foreseen by the State when it designed the new highway. The contractor constructed it as designed and specified and excavated the river channels as directed. It was not foreseen that the flood would undo what had been completed. Thus in any view of the evidence extra work came into being. Being extra work, the contractor was not obliged to risk its demanded performance under protest and later take his chance on recovering payment therefor. When the State directed its performance the contractor rightfully demanded a supplemental contract, and in refusing it the State breached its engagement at which time the action at law, upon which the claim is founded, arose. ( Borough Constr. Co. v. City of New York, 200 N.Y. 149; Collins v. State of New York, 259 N.Y. 200; Kent Constr. Co. v. State of New York, 212 App. Div. 197, 203; Carder Realty Corp. v. State of New York, 260 App. Div. 459, affd. 285 N.Y. 803.) [ 192 Misc. 464.]