New-York tribune. [volume] (New York [N.Y.]) 1866-1924, 1891-07-02
AGAINST O'BRIEN AND CLARK.
THEIR BIG AQUEDUor SUIT DISMISSED.
THE TEST CASE INVOLVING MILLIONS OF DOL
Laps OF rur CITY WILL. NE AppEA IlED.

THE TEST CASE, INVOLVING MILLIONS OF DOL
LARS OF THE CITY, WILL BE APPEALED.
The suit OF o'Brien & Clarh, the contractors, to
recover $732, 312 90 from the city for extra work
alleged to have been done on the sixth section OF the
new Aqucduct dismissed yesterday by Judge
Ingraham. of the supreme Court. lie allows the
plaintiffs. however, Sl0l57 81 the amount which the
chief engineer Of the AQueduct Commissioners admits
is due TO the contractors For more than four weeks
tho case occupied the attention of the Judge and the
patient Jury. The suit test ease upon It's
fate depended suits involving almost SSOOOOoo to be
brought against the city The contractors were rep
resented by Joseph Ii. ChOate, TreadweH CleVe@hd'
L. Latin Kellogg and +. T. Lovatt In oNer 10
combat these men the city employed Enhu ROOF
Josenh C. Carter Wallace Macfarlane and Austen c.
Fox to conduct the case.
Tho opinion Of Judge Ingraham contains almost
5000 words and reviews in detail, every part Oh ue
interesting case. The various causes Oh acuOh III
the complaint SAYS the Judge in part may be divided
into TWO general classes: First those based upon inc
obligation OF the city, under the contract made by the
AQucduct Commissioners, in the name OF @e city,
under Chapter 400 Of the Laws Of 1883. TO build sec
ton 9, whereby the contractors seek to recover the
amount due for work performed, and for which they
are 10 be paid BY the terms Of the contract secondly
where the city Is sought 10 be held liable for The acs
or failure 10 act of the chief engineer or ms SUD
ordinaes, where the contract contains no provision
requiring the city 10 pay for the damage caused OF
expenses incurred thereby
In order to recover for the amount due under the
contract" continues the Judge. in part, Z" the oo
LEGATION upon the plaintiffs TO show that they have
substantially performed the contract upon their part
The only authority Of the Aqucduct commissioners
was that conferred by the Aqueduct acts of 1855
They did not act general agcrts OF the city. They
could create no obligation binding against the city.
except in accordance with that statute The elect
of the act of 1883 to make the Commissioners
all Independent Board, created by the state, and 1t
gave the city no voice in the matter at ALL The only
power to find the city given to the Commission was
with reference to the making Of contract Under
the contract iede the Aqueduct Commission bound the
city TO do only thing to pay the contractors such
sums the engineer should certify 10 be due them
The judge il satisfied that the construction gwen
TO the contract by the engineer not only reason
able, but under the circumstances was its true
construction. The provisions Of thu contract, he says
indicated plainly that the engineer was 10 determine io
each part of the tunnel the extent of the excavation
The contractors had no power 70 change the contract
50 as h IMPOSE additional liability upOn the cN,
As to other claims OF contractors not lncluueu III
tn final certificates, the question as to pay was 70 nc
determined by tn engineer They %ere Go '1.'
TO Justify finding that mis- decision mad b,cn I'M
properly influenced. The contractors, therefore were
only entitled 20 receive the amounts cclilhcd 10 Dy
him.
The Aqueduct Commissioners, the inspectors and
the engineer were not servants OF the city, ana lile
city could not be made liabe Therefore Tor Their
negligence. 49,. ,
additional evidence TO make the record complete Tor an
appeal.