Opinion
June 30, 1943.
Appeal from Court of Claims.
The appeal is taken from that part of the judgment which fails to allow an award to the appellant for damages in excess of $7,859.32. The claim arose out of a breach of contract between the appellant and the State for the erection of certain buildings at Wassaic State School, Wassaic, New York. Claimant sought an award against the State for damages amounting to $16,378.57. The Court of Claims awarded damages of $7,859.32. Claimant appeals because of the failure of the Court of Claims to award the full amount of damages claimed. Appellant's contract was for the general construction and all work under it was required to be completed by December 31, 1933. Simultaneously with the letting of the contract to the appellant, the State let another contract to Edward V. McGovern Corporation for the furnishing and installing of all permanent sanitary work to be installed in conjunction with the general construction. The date of the completion of the McGovern contract was also December 31, 1933. Due to the failure of McGovern satisfactorily to progress the work, the State on January 20, 1934, canceled McGovern's contract and relet the contract for the unfinished work to Hyman Homer Sons, Inc., under date of February 26, 1934, with a contract completion date of June 1, 1934. This Homer contract was subsequently canceled and the work was finally completed by the surety. The claim was for the cost of delays caused to claimant in the progress of its work by the failure of the plumbing contractors to progress the sanitary work in conformity with the general construction. Claimant was finally able to complete all of the work under its contract and receive payment of its final estimate on August 8, 1934. At that time it notified the State that it intended filing a claim for damages for breach of contract. The Court of Claims has found that the plumber failed to progress his work in a prompt and efficient manner and to furnish materials when needed and as a result thereof the claimant was delayed and compelled to rearrange his progress plan in a manner not originally contemplated, which added to his cost. This lack of progress and co-ordination caused claimant to perform various of its operations in a segregated and piecemeal manner, thereby increasing its cost of performance. The uncontradicted evidence of the appellant established this increased cost at $18,202.65. The State in defense relied entirely on alleged delays of appellant's subcontractors. There was no dispute as to the amount of appellant's damages. The Court of Claims found liability on the part of the State for the delays which were caused by the plumbing contractors and, roughly speaking, assessed appellant's damages at forty per cent of the amount shown by the proof. It also found that claimant's subcontractors failed to prosecute the various units of work in a prompt and efficient manner and to furnish material meeting specification standards when needed, with the result that final completion was delayed notwithstanding the plumber's default. It failed, however, to point out those delays caused by subcontractors of appellant which affected the completion date, the extent thereof of the increased cost which they caused. We are of the opinion that the delays in claimant's completion date were due to the default of the plumbing contractor and not to the claimant or its subcontractors. We also find no reason to reject the wholly reasonable and undisputed proof of claimant as to the extent of the damage. It was entirely possible for the State to contradict this proof if the same was untrue. This the State failed to do, and in the circumstances of this case it should have been accepted. Judgment modified by increasing the amount of damages awarded to claimant from $7,859.32 to $18,202.65, with interest from August 8, 1934, and as thus modified, affirmed, with costs to appellant. Crapser, Bliss, Heffernan and Schenck, JJ., concur; Hill, P.J., concurs as to the reversal. The matter should be remitted to the Court of Claims for a decision indicating what items and to what extent the several items claimed are allowed. The court reverses findings numbers 11, 21, 23 and 25 and disapproves conclusion numbers IV and V of the decision. The court makes the following findings: Numbers 47, 48, 65, 97, 98, 107, 108, 109, 117, 130, 136, 139, 140, 141, 142, 146, 147, 148, 151, 154, 155, 156, 156b, 156c, 156d, 161, 162, 164, 165, 166, 168, 169, 170, 172, 173, 174, 175 and 176 of the claimant's requests to find. The court also makes and approves conclusion number III of claimant's requests to find. The court reverses findings numbers 6, 8, 12, 14, 15, 16, 17, 18, 20, 21, 22, 23, 24, 25, 26, 28, 29, 30, 31, 32, 33, 36, 38, 39, 40, 41, 42, 43, 47, 48, 51, 55, 56, 57, 58, 59, 60, 61, 66, 67, 69, 71, 72, 73, 74, 75, 76, 77, 78, 80, 81, 83, 84, 86, 87, 88, 89, 90, 91, and 92 and disapproves conclusions of law numbers I, II, III, IV and V of the State's findings of fact and conclusions of law.