Opinion
February 19, 1959
Appeal from the Municipal Court of the City of New York, Borough of Manhattan, CHARLES S. WHITMAN, JR., J.
Abraham Wilkenfeld and Joseph Lewis Simon for appellant.
Arthur H. Christy, United States Attorney ( Willian S. Ellis of counsel), for respondents.
Questions of interpretation of contract terms and specifications are not disputes as to questions of fact, and a determination by the United States Army contracting officer under a contract making his decisions on questions of fact binding on the parties is not binding on the plaintiff here, where such determination involved interpretation of written specifications. (U.S. Code, tit. 41, § 322; Pfotzer v. United States, 77 F. Supp. 390; Johnson Contr. Corp. v. United States, 132 F. Supp. 698.) Dismissal of plaintiff's first cause of action on the ground that the contracting officer's decision was binding was therefore improper.
The order insofar as it dismisses the first cause of action should be reversed and the motion and cross motion seeking summary judgment with respect thereto denied, with $10 costs to plaintiff.
I dissent.
In my view it is reasonable to conclude that the contract here required the plaintiff to reduce the moisture in the wood-flooring after the fire retarding process. Otherwise it would have been meaningless to provide for guaranteed delivery in 90 days, since it is conceded that air drying required one year to bring the moisture content to the desired percentage.
It appears that the dispute here was in respect of a question of fact, that is the requirements of the contract and facts concerning the treatment of lumber in order to render that lumber fit for its announced and intended use.
Consequently, the decision of the Government contracting officer was binding upon plaintiff.
AURELIO and TILZER, JJ., concur in Per Curiam opinion; HECHT, J.P., dissents with memorandum.
Order reversed, etc.