Opinion
June 3, 1910.
Terence Farley, for the appellant.
John J. Cunneen, for the respondent.
On the 23d of June, 1905, the plaintiff entered into a contract with the defendant for repaving Broadway in the borough of Queens with wood block pavement, and on the 27th of June, 1905, entered into a similar contract for repaving Second avenue. The contracts contained the following provision:
"EXTRA WORK LIMITED.
"No claim for extra work or materials shall be made by or allowed to the Contractor, unless before the performance of such extra work the President shall have first authorized the same in writing, and the price or prices to be paid therefor shall first have been agreed upon in writing between the President and the Contractor, and the same shall have been done or furnished under a written order from the President, given before the performance of such extra work or the furnishing of such extra materials. The aggregate price to be paid for extra work or materials so authorized or ordered shall not exceed five per cent (5%) of the contract price or total cost of the work and materials."
The plaintiff's general manager testified that at about the time of starting the work on the two contracts he had a conversation with the defendant's engineer in which it was determined that it would be a good thing to put in pitch expansion joints and that the engineer directed him to do that and promised to send him an order for them. The contracts did not provide for expansion joints. Without any further agreement and without the written authority of the borough president, the plaintiff proceeded to put in the expansion joints as the work progressed. The final certificate on the Second avenue contract was given by the engineer on the 6th day of October, 1905, and on the 28th day of November, 1905, the final payment was made and a general release given by the plaintiff to the defendant. The final certificate on the Broadway contract was made on the 20th day of October, 1905, and the final payment was made and a general release given on December 1, 1905. On the 30th of November, 1905, the borough president gave to the plaintiff four separate orders for expansion joints for pavements on Second avenue, Broadway, Jamaica avenue and Sanford avenue, the aggregate cost of which was more than $1,000. Probably the four orders were given separately to avoid complying with section 419 of the charter (Laws of 1901, chap. 466), and to make it appear that the work called for by them was independent of the contracts for repaving. It is unnecessary, however, to determine whether said section 419 applies, for it is plain that the putting in of the expansion joints was extra work within the meaning of the contract, and could only be recovered for in case, before performance, the borough president had authorized it in writing, and had agreed in writing with the contractor upon the prices to be paid. That provision of the contract could not be evaded after the contract had been completed, final payments made and releases given, by written orders which were probably designed to evade a provision of the charter as well.
The judgment and order should be reversed and the complaint dismissed, with costs.
INGRAHAM, P.J., McLAUGHLIN, LAUGHLIN and DOWLING, JJ., concurred.
Judgment and order reversed and complaint dismissed, with costs to appellant.