#### Dady *v.*Mayor, Etc., of the City of New York.

*(Supreme Court, General Term, First Department.*

July 18, 1890.)

1. Municipal Corporations—Grading Contracts—Certificate of Commissioner.

A contract for grading a street provided that, in computing the 300 days within which the work was to he completed, there should be excluded Sundays, holidays, and days when work was suspended by order of the commissioner of public works, and the time during which work was delayed by any act or omission of the city, “all of which shall be determined by the said commissioner of public works, who shall certify to the same in writing. ” *Held,*that the obtaining of such certificate was not a condition precedent to the maintenance of an action to recover moneys earned under the contract,

i. Same—Apportionment of Overtime.

In an action on such contract, there being no evidence on which to make an apportionment of the overtime between the contractors and the city, it was proper to decline to charge that the jury might apportion the overtime so that plaintiff should recover only for the exact number of days that the work was delayed by *820the action of defendant, and in lieu thereof instruct the jury that, if defendant delayed the contractors so as to prevent the completion of the work within the contract time, plaintiff was entitled to a verdict for the full amount, but that if it had caused no such delay defendant was entitled to a verdict.

8. Same—Interference by City.

A contractor undertaking to grade a street within a certain time does not assume the risk of any delay he might suffer through the operation of section 328 of the New York city consolidation act, giving sewerage works a preference overwork connected with other street improvements.

Appeal from circuit court, New York county.

Action by Michael J. Dady against the mayor, etc., of the city of New York. Judgment was entered on a verdict for plaintiff, and there was an order denying a motion for a new trial, from which defendant appeals.

Argued before Van Brunt, P. J., and Barrett and*Bartlett, JJ.

*John J. Townsend,*for appellant. A. *Laflin Kellogg,*for respondent.

Bartlett, J.

The plaintiff brings this action as the representative of the firm of John Cox & Co. to recover a balance of $2,841 claimed to be due from the city upon a contract for regulating and grading One Hundred and Eighth street from Eighth avenue to Manhattan avenue, and setting curb-stones and flagging sidewalks therein. The defendants admit the execution of the contract, but claim the right to retain out of the sum which the contractors would otherwise be entitled to receive $2,740 as liquidated damages for delay in completing the work, and $101 as repair security. The contract provided for the completion of the work in 300 days, and authorized the city to deduct and retain out of the moneys payable thereunder the sum of $20 a day as liquidated damages for delay beyond the prescribed period. The defendants insist that the contractors are chargeable with 137 days’ overtime under this provision in the contract, to which the plaintiff responds that the city itself prevented him from doing the work in 300 days, and hence should not be allowed to hold back any portion of the payment. His proposition that the delay was attributable to the action of the city authorities in carrying on other public works in the neighborhood, which prevented him from fulfilling his contract so far as the element of time is concerned, has been sustained by the finding of the jury. The contract provides that in computing the 300 days Sundays shall be excluded, and holidays on which no work is done, and days when work is suspended by order of the commissioners, and “ the time, aggregated in.days and parts of days, during which the work required by this contract has been delayed by any act or omission of the parties of the first part, [the defendants,] all of which shall be determined by the said commissioner of public works, who shall certify to the same in writing.”

The first point made in behalf of the appellants is that the plaintiff was bound to produce the certificate mentioned in this clause of the contract, or prove that he had applied for it and that his request.had been unreasonably refused. But the contract does not make the obtaining of this certificate a condition precedent to the maintenance of a suit to recover moneys earned thereunder. The provision seems designed to enable the defendants, if so disposed, to appeal to the commissioner of public works to decide how much time should be excluded from the 300 days by reason of the city’s interference with the due prosecution of the work by the contractors, so that if the contractors claimed too large a deduction on that account this officer should act as an arbiter between the parties previously chosen or consented to by both. Unless the city called him in to compute the delay, however, the contractors were certainly not bound to do so.

Section 328 of the New York city consolidation act prescribes that the construction of work under plans for sewerage shall have precedence over, and shall not be interfered with by, any work connected with other street improvements. The plaintiff attributed much of the delay to the building of a *821sewer in Eighth avenue. The second point made in behalf of the city on the present appeal is that the plaintiff must be deemed to have had knowledge of this law, and in undertaking to complete his work in 300 days the contractor assumed the risk of any delay he might suffer through the operation of the statute giving sewerage works a preference over other street improvements. In other words, the position of the appellants appears to be that the city can avail itself of this statute to interfere with a street contractor’s work, and then charge him $20 a day for the delay which it thus occasions,» Further discussion of this suggestion seems unnecessary.

Finally, it is contended that the trial court erred in declining to instruct the jury that they might apportion the overtime between the contractors and the city so that the plaintiff should recover only for the exact number of days that the work was delayed by the action of the city authorities. The learned judge was of the opinion that there was no evidence in the case precise enough to make such an apportionment anything but mere guess-work, and charged the jury that if the city by its action so delayed the contractors as to prevent them from finishing the work within the contract time the plaintiff was entitled to a verdict for the full amount, but that if it had caused no such delay the city was entitled to a verdict. I think this instruction was correct. When the city caused any substantial delay in the work, it lost the right to charge the contractors with the stipulated liquidated damages for overtime, and could only insist that the time of completion should be reasonable. In my opinion, the judgment and order appealed from should be affirmed, with costs. All concur.