Opinion
November Term, 1901.
Terence Farley, for the appellant.
L. Laflin Kellogg, for the respondent.
The issue tendered by the pleadings and the one involved on the motions made by both parties for the direction of a verdict is whether or not a certificate in compliance with the provisions of the contract was made by the commissioner of public works; and that is the single question presented upon this appeal. We have not in this formulation overlooked the insistence of the respondent that there is evidence tending to show that the defendant delayed the work and thus abrogated the time limit in the contract, and that apart from this no justification was shown for the deduction for overtime penalty.
If no certificate was made, these would be important considerations, for it would leave the whole subject open and entitle the plaintiff to show the actual number of days spent on the work over and above days allowed by the contract, and who was responsible for the delays. By the terms of the contract, however, these were to be determined by the commissioner, and it would only be in the event of his refusal to make such a determination, or upon proof of corruption bad faith, misconduct or palpable mistake in the certificate that an inquiry into the time spent or the delays which occurred would be permitted. In Van Aiken v. Mayor ( 18 App. Div. 89) it is said: "It would seem to be a condition precedent to the plaintiff's right to be relieved from the deductions for delay, that the question of responsibility for such delay should have been passed upon by the commissioner of public works or that it should appear that the commissioner had refused to make the prescribed certificate on the subject."
We are required to examine that case critically because if it is, as insisted by the respondent, in all respects identical with the one before us, then it is an authority which we should and would follow. There the complaint alleged the full performance of all conditions and covenants on the part of the contractor and the city's failure, by delaying the work, to fulfil them. In defense, the city pleaded not only the rightful retention as liquidated damages under clause E of the sums claimed by the plaintiff, but also two releases executed by him. The question presented, therefore, was as to whether the releases supported the defense of an accord and satisfaction; and the court held that this had not, as matter of law, been made out. There was no question in that case of whether a certificate had been given, the fact being that the contractor was allowed to introduce evidence without objection that he had not procured any certificate though he had endeavored to do so. If in the present case, therefore, no certificate was made, then an analogous question would be presented; but, as we stated at the outset, the issue with which we are concerned upon the pleadings and the proof here is as to whether a certificate was or was not duly made in compliance with the terms of the contract.
The pleadings were predicated upon the theory that there was no certificate and that there being no certificate, it was entirely competent for the contractor to show after he had made a demand for one and it was unreasonably refused, just who was responsible for for the overtime. In other words, as a condition precedent to maintaining the action it was incumbent on the plaintiff to show that there was no certificate given and that the demand for it was unreasonably refused. Upon this theory it was competent to introduce evidence tending to show that the overtime was due to delays caused by the city. The city, on the other hand, insisted that a certificate had been made and whether it was or not is the question for our determination.
The paper relied upon by the defendant is as follows: "Commissioner's determination of time in accordance with Clause E, Page 22 of Contract:
180 days allowed. 30 " " for rainy weather. 24 " overtime charged to Contractor. ______ 234 " Inspector's time.
"HOWARD PAYSON WILDS, " Deputy Commissioner of Public Works."
It is evident from its phraseology that this was an attempt at least to make a certificate, and the question is, Was that attempt successful? The paper was assailed in the first place because it was signed by the deputy instead of the commissioner himself. There is evidence, however, that the commissioner had given written authority, pursuant to law, to the deputy to perform every duty devolving upon the commissioner covering the period when the paper in dispute was made and signed. It was shown, therefore, that the deputy was the acting commissioner and as he was the person to whom the contractor applied and with whom he had his discussions concerning the certificate, this objection to the paper we regard as hypercritical.
The paper is undated and the exact day upon which it was made does not appear, though it is evident from the letters and other evidence in the case that it was given in the month of July, 1897. Thus the plaintiff testified: "I made a demand on the Commissioner in July, 1897, and the Engineer in charge of sewers in connection with this overtime. I had a hearing, conversation and conferences in connection with that demand. Those conferences took place in the Commissioner's office." The plaintiff further stated that in addition to the deputy, who was then acting commissioner, the engineer and others were present at these conferences where the question as to who was responsible for the overtime was discussed. While it is not entirely clear whether any hearing or conferences took place before the actual making and signing of the paper, it is placed beyond doubt that the whole subject of the correctness of the determination of the commissioner was gone over many times and that the commissioner adhered to the determination expressed in the paper.
The respondent's contention is that the paper thus signed was ineffectual and invalid because it failed to express or state the commissioner's conclusion with respect to all the elements that should have been considered by him in reaching his determination, and particularly because it made no specific reference to Sundays and holidays and omissions or acts by the city causing delay. To determine whether this contention is sound we must refer to clause E of the contract, which on this subject provides: "In the computation of said time, the length of time (expressed in days and parts of a day) during which the work or any part or section thereof has been delayed in consequence of the condition of the weather or tides, or by any act or omission of the parties of the first part (all of which shall be determined by the said Commissioner of Public Works, who shall certify to the same in writing) and also Sundays and holidays upon which no work is done, shall be excluded. * * *"
There is nothing in this record to show that the commissioner overlooked any of the items which he should have taken into account in reaching his determination in accordance with this clause of the contract; and it is only because he did not, in making up his form of certificate, say in express terms that Sundays and holidays were excluded, and that there were no omissions or acts on the part of the city causing delay, that objection is taken to its sufficiency. There is nothing, however, in the clause to which we have referred which requires the commissioner to set forth these items or the grounds for his determination, or his mental operations in reaching a conclusion. And by fair inference it appears from the paper which he gave, that the elements referred to in clause E were considered by the commissioner, because we have the total number of days allowed for the inspector's time, which covers the number of days during which the work was in progress, and which impliedly excluded Sundays and holidays; for, as appears from his tabulated record, these were not to be included in the inspector's time; and then we have a computation in days of just how this inspector's time was made up, which included the days allowed for rainy weather and the overtime charged to the contractor, which, embracing as it did all the other days, necessarily excluded any days of delay caused by the city. The respondent is in error in assuming that clause E required that the certificate should be in such form as to expressly enumerate all the elements or items of computation which the commissioner was to consider under that clause in reaching his determination. What that clause required was no particular form, but a certificate which should clearly show with respect to the computation of time, what was the determination of the commissioner. Measured by this rule, we think the certificate here in dispute, clearly showing his determination, was sufficient.
Having reached this conclusion, which is the opposite to that reached by the learned trial judge, it would follow that, instead of the direction of a verdict for the plaintiff, a verdict should have been directed for the defendant.
The judgment accordingly should be reversed and a new trial ordered, with costs to the appellant to abide the event.
VAN BRUNT, P.J., INGRAHAM, McLAUGHLIN and HATCH, JJ., concurred.
Judgment reversed, new trial ordered, costs to appellant to abide event.