Opinion
March, 1933.
Appeal from Supreme Court, Niagara County.
The written order, Exhibit 2, was intended as an order for an extra, but as such was not in compliance with the contract, as it was not approved by the city council. The plaintiff, therefore, cannot recover upon the contract as for an extra. The city engineer was not shown to have authority to order this work done. Therefore, the plaintiff cannot recover the value of the work done on the order of the city engineer and independent of the contract. There is an absence of proof of a breach of the contract by the city under the principle stated in Borough Const. Co. v. City of New York ( 200 N.Y. 149). There was no dispute between the contractor and the city or its representative as to whether the work of leveling the foundation was within the contract. The corporation counsel was not consulted as required by the contract in case of dispute. The city engineer did not rule that the leveling of the base was within the contract. The plaintiff did not do the work under protest. The plaintiff, therefore, has failed to make out a case either as alleged in the complaint or for breach of contract. All concur. Judgment reversed on the facts, with costs, and complaint dismissed with costs. Certain findings of fact and conclusions of law disapproved and reversed and new findings and conclusions made.