#### Patrick Ryan, Sole Surviving Member of the Firm of Shanley & Ryan, Composed of Patrick Ryan and Edward Shanley, Respondent, Appellant, *v.*The City of New York, Appellant, Respondent.

First Department,

November 7, 1913.

Contract—provisions of contract for construction of anchorage for bridge construed — action for damages — evidence — difference between value of stone rejected and that substituted — value of overcoming settlement of anchorage—value of piling not withdrawn — interest on delayed payments — furnishing larger stone — cleaning stone—loss by delay of city in making payments—costs—extra allowance.

Action by the surviving member of a firm of contractors for the construction of the Manhattan anchorage of the Williamsburg bridge to recover damages under their contract with the city of New York. Provisions of the contract and evidence examined, and *held,*that the provisions of a judgment for the plaintiff, awarding damages for the difference between the value of limestone rejected and the value of granite substituted therefor, for additional labor and material in overcoming a settlement of two and three-quarters inches in the anchorage, for the value of sheet piling left in place and at the request of the city, for interest on delayed payments by the city, for furnishing larger bearing stones than were required in the original plans, and for cleaning face stones, etc., should be affirmed, but that the provisions of the judgment awarding the plaintiff general damages for loss occasioned by unreasonable delays *106on the part of the eity in making payments should be reversed. Legal interest for sueh delays is presumptively sufficient compensation. Plaintiff was properly granted an extra allowance as the case was long and difficult.

Cross-appeals by Patrick Ryan, as sole surviving partner, etc., and the defendant, The City of New York, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 25th day of October, 1910, upon the report of a referee appointed to hear and determine the issues; also appeal by the defendant, The City of New York, from an order of the Supreme Court, entered in the office of the clerk of the county of New York on the 24th day of October, 1910, granting plaintiff an extra allowance of $1,000.

*John C. Wait,*for the plaintiff.

*William E. C. Mayer,*for the defendant.

Hotchkiss, J.:

The firm of which plaintiff is the survivor was the contractor for the construction of the Manhattan anchorage of the Williamsburg bridge. This anchorage was authorized by chapter 789 of the Laws of 1895, and was, in pursuance of that act, contracted for in the joint names of the mayor, etc., of New York and the city of Brooklyn on October 5, 1897. This was prior to the date when the Greater New York charter (Laws of 1897, chap. 378, as amd.) became operative. The work of building the bridge embraced contracts with other concerns for cables and the several towers over which they were strung. The work under the plaintiff’s contract was begun in October, 1897, and was completely finished about July or August, 1903. The contract provided for specific prices to be paid for piles, according to length, and “the sum of * * * $716,770 for the remainder of the whole work complete in place.” The masonry work included granite base or underpinning, granite face stones, ashlar shaft and moulded granite coping, with undressed limestone in the interior and faced limestone for certain exterior parts. Monthly or progress payments of the usual character were to be made by the city as the work progressed, and final payment after completion.

*107The case comes here on. cross-appeals, the city appealing from the judgment in plaintiff’s favor, and the plaintiff appealing from so much of the judgment as dismissed certain of his claims. The items upon which plaintiff was awarded judgment are referred to throughout the case by numbers, which enumeration I shall follow.

Item 14. Damages because of being compelled to furnish increased quantities of granite under a wrongful construction of the specifications applicable to face stones; or, in the alternative. Item 21. The value of face limestone and limestone backing actually furnished but omitted from monthly and final estimates.

The specifications attached to the contract purport to be divided into general subjects and again into particular subjects. Stone work and masoniy seem to be included in a number of general titles, such as “Description,” “Quality of Materials,” “Backing Stones,” “Knuckle Stones,” “Coping and Cornice,” etc. Under the general heading of “Masonry,” with a sub-title of “Bond,” is section 102, reading: “The masonry will be laid in regular courses, and must be thoroughly bonded throughout. No stone in one course shall overlap the stones of the course next below by less than fifteen inches. ” Under the general title of “ Face Stones ” there are numerous sub-titles. Included under “Headers” is section 109, reading: “Every second or third stone in the face of each course shall be a header. Each header must be at least three feet in face width, and its length shall be at least three times its height.” Under the sub-title of “Stretchers” is section 110, reading: *‘ ‘*Stretchers shall not be less than twice nor more than four times their height in length, nor less than three feet wide.” Sections 111 and 112 bear sub-titles of “Vertical Joints” and “Beds,” and section 114, entitled “Bottom Beds, etc.,” reads: “The bottom bed shall always be the full size of the stone, and no stone shall have an overhanging top bed *(this clause applies also to backing)”*The specifications also provided that “Any question as to the intent or meaning óf these specifications and drawings shall be referred to the [chief] Engineer, whose decision, approved by the Commissioners, shall be final.”

The contract itself provided that the contractor should sub*108mit to the chief engineer “course drawings,” showing in detail the dimensions of each layer of stone for the anchorage. Such approval of the course plan was necessary before the stone could be cut. The first course plans prepared by plaintiff’s engineers were submitted to the chief engineer, who rejected them, claiming they were not in accordance with the specifications because they did not show a “ 15-inch ” bond in the face stones. To this the plaintiff objected. After considerable discussion the city modified its demand to the extent of permitting a lap of eleven and one-fourth to eleven and one-half inches in the granite face ashlar. The practical difference between the parties with respect to the clauses of the contract affecting the question of bonding was that the construction claimed by the city required that at every alternate course of face granite there should be laid a second or interior course of granite. It is manifest that this construction required the use of very much more granite than would otherwise have been necessary, and, to a corresponding extent, required the use of less limestone, a much cheaper stone.

The plaintiff continued to contend against the city’s construction of the contract, and insisted that, notwithstanding whatever was said about bonding in section *102*under the general title of “Masonry,” the proper construction of the contract in this regard was to be found under the general heading of “Fáce Stones” as expressed in the various sections under the snb-titles of “Headers,” “Stretchers,” “Vertical Joints,” etc., laying particular stress upon section 114, entitled “Bottom Beds, etc.,” and the last words thereof, which in the original are italicized and read “This clause applies also to backing,” thus, as plaintiff claimed, showing an intention to qualify any general expressions of section 102 by the particular phrases and measurements found in the sections under the general head of “Face Stones.” Notwithstanding plaintiff’s protest, the city insisted upon its construction, modified as above, and, still protesting, plaintiff completed the contract according to the city’s demand.

If the affirmance of the judgment, so far as this item is concerned, required the approval of certain classes of evidence offered by both parties and consisting in part of the testimony *109of experts as to the meaning of the contract, and in part of the practical construction put upon a different although similar contract between the city and another contractor for the building of the Brooklyn anchorage of the same bridge, I should hesitate to express my concurrence. But upon other evidence of undoubted competence, voluminous in extent and convincing in weight, the learned referee has found that the position taken by the city, although not without some support from the confused expressions of the specifications, was without actual justification and that the contract afforded it no valid ground for its demand. Under these circumstances the act of the city in compelling plaintiff to substitute some 2,329 cubic yards of granite for a like quantity of limestone constituted a breach of the contract for which he is entitled to recover damages. *(Gearty*v. *Mayor, etc., 171*N. Y. 61; *Borough Const. Co.*v. *City of N. Y.,*200 id. 149.) The damages awarded were the difference between the value of the limestone rejected and the value of the granite substituted therefor. To this measure of damages no objection can be made.

Item 2. Additional labor and material in furnishing and setting masonry to compensate for a settlement of two and three-quarter inches in the anchorage. For this plaintiff recovered $3,508. It is not disputed that the anchorage settled two and three-quarter inches. The practical importance of this settlement arose from the fact that it decreased the height of the anchorage to an equal degree. The effect of the specifications and drawings was to fix the height of the anchorage, because the details of each course of stone, bed joints, etc., were exactly prescribed, and the total aggregated the height of the anchorage. Manifestly, if the anchorage was built according to the contract, any deficiency in the height arose from the failure of the city’s engineers to provide for such settlement as was necessarily to be expected. I see no reason why plaintiff should not be compensated for the work covered by this item, and the amount allowed therefor by the referee was reasonable and is not seriously disputed.

Item 13. Value of sheet piling left in place and, at the request of the city, not withdrawn. It is not disputed that the sheet piling, which consisted of the timbers out of which a *110so-called cofferdam surrounding the excavation was constructed was not withdrawn on three sides, but was left in place. The city contends that the evidence shows that this was done because plaintiff found it impossible to pull up the piling. There is testimony which gives color to such a claim, but the weight of evidence is to the contrary. The facts seem to have been that the city condemned an amount of land so slightly in excess of the space actually occupied by the anchorage structure as to compel the contractor to drive his cofferdam timbers so close to the structure that on all except the river side they became bound more or less into the concrete of the foundations so that had the plaintiff pulled them out as he was required to do under the clause of the contract binding him to remove from the work at the conclusion thereof everything in the way of plant, etc., belonging to him, he might have seriously interfered with the integrity of the work. To avoid this, the evidence justified the finding that the city requested plaintiff to leave the piling in place. It is true that the evidence of the value of this piling as second-hand material, in case it had been drawn out, was slight. Nevertheless, there was some evidence from which such value could be inferred, and taking all the evidence into consideration, the amount allowed by the referee seems to have been reasonable.

Items 11 and 18 cover interest on delayed payments on account of monthly estimates. Item 20 is for interest because of similar delay in making the final payment. No question is made as to the correctness of the figures, but the liability of the city is denied. The evidence justified the finding that the payments were unreasonably delayed beyond the time when they were severally due according to the contract. The receipts given by plaintiff himself for the several monthly payments made to him or to his firm personally were qualified so as to reserve plaintiff’s claim for interest. Certain other interim payments made to a bank to which they had been assigned by plaintiff as security for loans, and for which payments the bank necessarily receipted, were not made under circumstances which justify the presumption that they were received or paid with the intent to cut off plaintiff’s claim for interest, or that the clean receipts given by the bank were evidence of any. such *111intent. In view of these facts, I think the allowance of interest was proper.

The remaining items are 15 and 19, the former for furnishing larger knuckle or bearing stones than were required by the original plans, and the latter for cleaning face stones, etc., from dirt and unreasonable accumulations negligently permitted by the city; the two aggregating $822. As to these it is sufficient to say that their allowance involved questions of fact which I think were properly disposed of by the learned referee. This disposes of all the questions raised by defendant’s appeal from the judgment.

On the plaintiff’s appeal there is raised the question of his right to recover a large sum claimed as damages for alleged unreasonable delays on the part of the city. Two periods of construction were provided for by the contract. The first included the work up to a point which would allow the stringing of the cables, for which work a time period of sixteen months from the execution of the contract and giving bond therefor was allowed. The second period was to begin within four months after plaintiff was notified by the chief engineer to resume work. On account of the first period, plaintiff claims a delay of approximately eight months; and on account of the second period, a delay of some eighteen months.

There is practically no dispute between the parties that the first stage of plaintiff’s work was begun October 15, 1891, and was fully completed in March, 1900, a period of some fifteen months in excess of the time stipulated in the contract. The second stage was begun in November, 1902, and completed in or about August, 1903. The causes of the alleged delays in the second stage fall into three general classes: (1) Failure to pay moneys earned and due under the contract; (2) time lost and expenses entailed by a change in the plans for the anchor-chain chambers; (3) time lost and expenses incurred because of delay in letting and causing to be promptly executed the contracts for the towers and spans, viaducts and cables, the completion of all of which was necessary before plaintiff could begin work on the second stage of his contract.

I can see no legal ground for awarding plaintiff general damages for any loss occasioned by delay on the part of the city in *112making its payment to Mm on contract time. For such delays legal interest is presumptively sufficient compensation, and that plaintiff has already been awarded. While a failure by the city to pay as agreed might have afforded plaintiff ground for rescinding the contract *(Wharton & Co.*v. *Winch,*140 N. Y. 287), he did not elect so to do. After having proceeded with the contract to completion it would certainly be a novelty in the law if he could recover, beyond interest, damages for the city’s failure to pay as and when agreed.

There is a clause in the contract which gives the city the right to “ suspend the whole or any part of the work * * * without compensation ” to plaintiff; but I take it that tMs covers only an actual cessation of work under direction of the city, and does not, while the work is actually progressing, serve as absolution for any and all delays that the contractor may suffer. Although in express terms the contract contained nothing bindmg the city not to embarrass plaintiff by delays mcident to material changes of plan, or to have completed within any prescribed time the work to be done by others, and upon the completion of which the forwardmg of plaintiff’s work necessarily depended, nor even any words of express obligation on the city’s part to proceed with diligence in those things which the situation necessarily mdicated were to be done by it and the doing of which controlled the progress of plaintiff’s work, I take it that it was under an implied obligation of good faith and diligenca with respect to all of these matters, and that having entered into the contract with plaintiff it was bound to go on with the work without unnecessary delay, and carry the business to completion within a reasonable time. *(McMaster*v. *State of New York,*108 N. Y. 542.) In the light of tMs principle what does the record show ?

On August 30,1898, plaintiff had been notified of an intended change of plan, and on October third he received the detailed or working plan, embracmg the proposed changes, which were different from those mdicated by the communication of August tMrtieth. The plaintiff did not finish the work of demolishing the old buildings and clearing the site of the anchorage, excavating to the necessary depth, and driving the foundation piles upon wMch the timbers and concrete, which were to .be covered *113by grillage and masonry, rested, until late in October, 1898, about a year after he had commenced work. This left not to exceed four months within which to complete the first stage of his contract. It is idle to argue that up to this time plaintiff had been materially, if at all, delayed by reason of the changes made by the city in the anchor-chain chambers, because he had not then reached the stage of the work where construction of these chambers was to commence. It may be true that, as an incident to the changed plans, additional forms for concrete and a new and perhaps novel system of waterproofing was required, one or both of which added somewhat to the expense and time required for completing the work up to the point where the laying of masonry was to begin. But however this may be, I can find nothing in the evidence which would permit of a finding as to what such expense amounted to or what the delay, if any, was, and it is only by inference that the fact of any such expense or delay can be learned. On March fifteenth, less than five months after the preliminary work was completed, the anchor-chain chambers were finished. I see no ground for the assertion of plaintiff’s counsel that these five months, or any equal period, was lost to plaintiff by any act of the city. It is conceded in the brief of plaintiff’s counsel that during the particular period referred to “the work was carried on continuously and expeditiously.” It is apparent that construction of the chambers as originally planned would have taken a considerable time; that it would have taken less than was occupied in completing according to the final plans is not shown.

In excuse for the long time, over one year, which plaintiff took to complete the work preliminary to the construction of the chambers, and as justifying such delay, the plaintiff relies upon evidence tending to show a failure on the part of the city to make appropriations for continuing the work, during which period plaintiff admits a corresponding cessation of activities on his part because of want of funds. For any unreasonable delay due to its failure to provide moneys for the cost of work to be done by others, and upon which the progress of plaintiff’s work depended, the city, within the rule already referred to, *114would be liable to respond in damages for any loss to plaintiff. But as I understand it, plaintiff, under this item of his demands, does not claim to have suffered delay from any such cause. Such delays as he complains of were incident to his own failure to advance his own work more expeditiously, and as such they were, in the eye of the law, voluntary because directly chargeable to plaintiff himself; for if, in anticipation of sufficient funds not forthcoming, he relaxed his efforts and chose to apportion the amount of his work to the sums which would probably be at the disposal of the city on account of his contract, I know of no rule which would permit of his recovering damages, if for no better reason, because none were suffered, as he could not be entitled to pay for more work than he did. If he sought to put the city in default, he should have taken the steps necessary to do so. It is possible to conceive of a state of facts to which the foregoing principle might not apply, as where an employer had definitely announced an unqualified intention not to allow the work to proceed beyond the pace to which the contractor was unreasonably limited and to refuse payment for any additional work. (See *Wharton & Co.*v. *Winch, supra.)*But such is not the present case.

The plaintiff’s claims arising out of an alleged delay of eighteen months on the part of the city in causing to be completed the several contracts for the towers and spans, viaducts and cables remain to be considered. The chief cause of the alleged delay plaintiff attributes to the time consumed by the contractors for the cable, who had agreed to complete in ten months. The plaintiff contends that the city is bound by the ten months fixed by the contract, which *prima facie*was a reasonable time. The referee has found that in fixing ten months for the performance of this work both the city and its contractor were too sanguine and that the period so fixed was unreasonably short, that the time actually consumed, and which there is' reason to believe was extended to some degree by a failure on plaintiff’s part to clear away portions of his plant and in part by a fire and by other unanticipated delays which could not have been reasonably avoided, was not unreasonable.

I have carefully read and weighed the mass of oral and *115documentary evidence bearing not only on the work of the cable contractors but upon that of the contractors for towers and spans. As a result I confess that the subject, as an original question, impresses me as one of doubt. Having in mind the periods which originally it was believed the work would consume, beyond question there were delays. They were fairly and beyond doubt attributable in part, not to one alone, but to several contractors (among whom the plaintiff may justly be suspected of being included), and possibly in part to the failure of the city to provide necessary funds for the more rapid completion of the work. But to what extent, if any, the neglect of the city contributed to the delay, I find impossible to determine, because the period of any such delay seems to be inextricably confused with cotemporaneous periods of apparent and excusable delay on the part of one or more of the contractors. I am not unmindful of the fact that, as between the plaintiff and the defendant, the latter is responsible for any unreasonable delay on the part of other contractors, whether caused by the city’s failure to provide funds or by other of its own acts or omissions. But whether any delay was or was not unreasonable and hence wrongful, must be determined in the light of the entire situation. Here was an undertaking of great magnitude and public importance. Its performance was committed to several contractors, whose work to a certain degree interlocked, so that the progress of one measurably depended upon the others. The celerity with which the entire task could be completed depended upon a vast number of details, difficult, complicated, delicate, to some extent novel, requiring time for experiment and the discovery of methods for their successful solution. Experience has shown that in construction work of a character simple and insignificant, in comparison with this in question, it commonly happens that the time for completion as originally contracted for or anticipated, is long exceeded, bringing disappointment to all and loss to some. Under these circumstances men are prone to judge the past in the light of their later experience, and to entirely overlook, or attach too little weight to an infinitude of things of greater or less importance, which, combined, tended, largely to produce the unfortunate result, and which, in *116the broader aspect, were either unavoidable or excusable. The evidence in this case offers abundant opportunity for this point of view, which the learned referee seems to have taken. On the whole, I cannot say that his finding that the time actually consumed was reasonable, is so clearly against the weight of evidence as to justify a reversal. The extra allowance was justified. (See Code Civ. Proc. § 3253.) The case was long, intricate and difficult, and necessarily involved plaintiff in an expense for its trial, for which the allowance is but meagre indemnity.

The judgment should be affirmed, without costs, and the order for an extra allowance affirmed, with ten dollars costs to the plaintiff.

Ingraham, P. J., MoLaughlin, Laughlin and Dowling, JJ., concurred.

Judgment affirmed, without costs, and order granting extra allowance affirmed, with ten dollars costs to plaintiff. Order to be settled on notice.