Patrick F. Burns, Appellant, v. The City of New York, Respondent

Patrick F. Burns, Appellant, v. The City of New York, Respondent. Oontract—right to compensation for material; deposited under a contract which authorised, the engineer to direct the place of deposit of material excavated. A person, employed-by the city of New York to face a bank with a dry stone protection wall, under a contract, by which he was to receive fifty cents per cubic yard for the embankment, and by which he agreed to deposit the material excavated in such places as the engineer might direct, deposited, in obedience to the engineer’s instructions, a quantity of material excavated by him on the line of the embankment. Held, that he was not entitled to be paid for placing such material upon the embankment as well as for excavating it — especially where such claim was decided adversely to the contractor by the engineer in his final certificate, which, by the terms of the contract, was made final and conclusive upon the contractor. • ■ Appeal by the plaintiff, Patrick F. Burns, from a judgment of the Supreme Court in favor of the defendant, entered in the. office of the clerk of the county of New York on the 8th day of May, 1900, upon the decision of the court rendered after a trial at the New York Trial Term, a jury having been waived, dismissing the complaint. The action was brought to recover for work done in constructing ■an embankment under a contract providing, among other things," as follows: “ (A.) The party of the second part will furnish all the labor and materials at his own cost and expense, necessary or proper for the purpose, and in a good and substantial and workmanlike manner perform the necessary work for facing bank in front of Old Engine-house, High Bridge, with dry stone protection wall. * * * “ (B.) To prevent all disputes and litigation, it is further agreed by and between the parties to this contract, that said Engineer shall, in all cases, determine the amount or the quantity of the several kinds of work which are to be paid for under this contract, and he shall determine all questions in relation to said work and the construction thereof; and he shall in all cases decide every question which may arise relative to the execution of this contract on .the part of the said Contractor, and his estimate and decision shall be final and conclusive upon the Contractor; and such estimate and decision, in case any question shall arise, shall be a condition precedent to he right of the party of the second part to receive any money under this agreement. * * * “ Earth excavation will include the excavation of all materials not included in rock excavation. They shall conform to such lines and levels as may be given by the Engineer, and deposited in such places as he may direct.” James A. Dunn, for the appellant. Theodore Connoly, for the respondent. [MAJORITY — Patterson, J.:] Patterson, J.: The plaintiff was employed under a written contract by the city of New York to do certain work, consisting of facing a bank in front of the Old Engine House, at Highbridge, with a dry stone protection wall, and under that contract he was to receive fifty cents per cubic yard for the embankment. He claims that he constructed under the contract 2,689 cubic yards of embankment and was entitled to receive, at the price of fifty cents per cubic yard, the sum of $1,434.50, of which he has been paid all, except the sum of $967.50. The defendant admits the contract, and sets up as a separate defense that the plaintiff expressly agreed in and by the contract that there was to be earth excavation and rock excavation and that the former should include all not included in rock excavation and that such excavation, should conform to lines and levels to be given by the engineer and the material excavated should be deposited in such places as the engineer might direct; that pursuant to the provision of the contract, the engineer directed the plaintiff to deposit on' the line and level of the proposed embankment 934 cubic yards of excavated earth, arid that plaintiff complied with such directions. The defendant also sets up as a separate defense that' the plaintiff expressly agreed that to prevent all disputes and litigation the engineer should in all cases determine the amount or the quantity of the several kinds of work which were to be paid for under said contract; and that he should determine all questions in relation to said work and the construction thereof; that his estimate and decision should be final and conclusive upon the contractor and that such estimate and decision, in case any question should arise, should be a condition precedent to the right of the contractor to receive any money under the agreement. Then the defendant sets up that the engineer made a final estimate and decision and issued a final certificate wherein lie states the whole amount of work done by the plaintiff. and also the value cff .such work done according to the terms of the contract; that the certificate was to the effect that the plaintiff had excavated 934 cubic yards of earth and that, he had earned $967.50 and no more, and the payment of $967.50 is set up. Upon the trial if was agreed that the plaintiff excavated 934 cubic yards of earth and that he was entitled to be paid for that excavation. It was also admitted that the engineer in charge of the. work directed the plaintiff to take 934 yards of excavation and place it in the embankriient. The. claim of the plaintiff is that he is entitled to be paid under the contract for the 934 cubic yards of earth thus placed in the embankment. The final certificate of the engineer was used in evidence and it was conceded that the city had paid according- to that certificate. . This certificate is conclusive. It is not attacked for fraud, nor is there any allegation -in the complaint of a mistake made in the certificate by the engineer. The plaintiff stands merely upon the terms of- the contract. The fourth specification of the contract relating to the excavation of earth, for- which excavation the plaintiff was paid, requires the contractor to deposit it where tlfe engineer should direct, and that was done. The argument of the plaintiff seems to be that, inasmuch as he was to furnish the material for the embankment and be paid for the labor of placing it, he is entitled to recover. That is clearly not so. The material put in the embankment was apparently the property of the city. The contractor was bound to deposit it as the engineer instructed him. He acquiesced in putting it in the embankment. He was paid for excavating and depositing it. He neither furnished the material nor the labor of depositing it, independently of his obligation under the fourth specification. He cannot now recover for this material and for the labor for which he has already been paid, upon the theory that he was not permitted to furnish the material and supply the labor which would have been required in the performance of the work on the excavation, which seems to be the basis of his claim. He acquiesced in the direction of the engineer, and did that which he was required to do under the fourth specification of the contract. The certificate stands in the way of his recovery,* even if he had not acquiesced in the'demand of the engineer. The judgment was right and should be affirmed, with costs. Van Brunt, P. J., O’Brien, McLaughlin and Laughlin, JJ., concurred. Judgment affirmed, with costs.