John Slattery, Appellant, v. The Mayor, Aldermen and Commonalty of the City of New York, Respondent

John Slattery, Appellant, v. The Mayor, Aldermen and Commonalty of the City of New York, Respondent. Municipal contract—requiring remoral of piling “unless otherwise ordered,”—no right of recovery exists against the city where the work is injured because the piling is not ordered, to remain. Under a contract entered into with a city for the building of a sewer, which provides, among other thing's, that “ The sides of the excavation shall be supported by suitable planking and shoring wherever necessary, and in all cases the same are to be drawn as the work progresses, unless otherwise ordered,” the contractor is, in the absence of instructions to the contrary, bound to withdraw the piling; and if in so doing the work already done be injured, he cannot recover from the city for the additional expense incurred in restoring the work to a complete condition. Appeal by the plaintiff, John Slattery, from a judgment of the Supreme Court in favor of the defendant, bearing date the 23d day of October, 1897, and entered in the office of the clerk of the county of Hew York upon the dismissal of the complaint as to the third cause of action by direction of the court, after a trial at the Hew York Trial Term; and also from an order bearing date the 18th day of October, 1897, and entered in said clerk’s office, denying the plaintiff’s motion to set aside the verdict of a jury rendered in favor of the defendant upon the first and second causes of action, and for a new trial made upon the minutes. L. Laflin Kellogg, for the appellant. Theodore Gonnoly, for the respondent [MAJORITY — Van Bkunt, P. J.:] Van Bkunt, P. J.: This cause of action was to recover damages because the defendant compelled the plaintiff to do the work under a contract in a wrong, erroneous and disadvantageous manner, whereby the cost of the work was largely increased and the plaintiff was put to great loss, damage and expense, and on the ground that this additional expense was caused by the defendant compelling the plaintiff to withdraw certain sheet piling which had been placed to uphold the bank of the sewer while the same was being built. Among the provisions of the contract were the following : “ The sides of the excavation shall be supported by suitable planking and shoring wherever necessary, and in all cases the same are to be drawn as the work progresses, unless otherwise ordered. * * * “ Where sheet piling is rendered necessary, and used only in prosecuting the work, no allowance will be made therefor and it shall in all cases be drawn as the work progresses, unless otherwise ordered by the said Commissioner. “ When the sheet piling is so retained,.the price bid for timber for bracing and sheet piling when ordered to be left in the trench will be allowed.” It is claimed upon the part of the appellant that the duty of determining whether or not the sheet piling should be left in the trench was laid upon the defendant by the express terms of the contract,'and that its erroneous decision that it was not necessary that the sheet piling should remain was the direct cause of the increased cost occasioned to the plaintiff. We are unable to place this construction upon the contract. The provisions of the contract are that the piling shall be withdrawn in all cases as the work progresses, unless otherwise ordered, in which case payment is allowed. In the absence of instructions to the contrary, the plaintiff was bound to withdraw the piling and the work was not complete until this was done, and if in withdrawing the piling he injured the work already done, and, therefore, could not deliver it in completed condition without additional expense, that seems to have been what the plaintiff undertook under his contract and he cannot recover from the defendant. Whether or not it was wise for the plaintiff to enter into such a contract, cannot affect the question as to his right to a recovery for this additional expense. He did enter into such a contract; he was not relieved from its obligations, and he has simply complied with its requirements. This seems to be all there is of the question involved on this appeal. ' The judgment should be affirmed, with costs. Patterson, O’Brien, Ingraham and McLaughlin, JJ., concurred. Judgment affirmed, with costs.