New-York tribune. [volume] (New York [N.Y.]) 1866-1924, 1909-11-27
METZ WILL YIELD


port, tlss OcntrOIler IN December ol A"SN
year authorized payment to the con-
tractor OF S5O0,OOO, and retained $751;
46i II of the amount claimed for the
reasons given in the report of his exam
lining engineer
THE LEGAL OPINION.
The submission by the Controller of
the report of his examining engineers TO
the Corporation Counsel for his legal
opinion brought a reply. dated November
II, 1905. which says:
The first query in your communication
of September g. 1905. is as follows:
~ C an the PENNSYLVANIA Steel C ,Ela ftr
omission to meet speciicst ton require
ments, fixing stress limitations for the
members of the BlaCkweliS Island Bridge;
and further in the matter of design, should
such conditions develop as the result or M
NestlEatlons now I'm progress, TO an extent
requiring the strengthening of the Struct-
ure? | have withheld from the final esti-
mate as forwarded me. pending your opin-
ion, sum appearing suftct( NJ to meet
defects are shown"
To the portion of the question which
reads. can the PENNSYLVANIA Steel Coin-
Iany be held in any measure responsible
for omission 10 meet specification REQUIRE
members OF the BlackweII's Island Bridge? -
my answer is that IL can. provided that
the company has departed or deNlated 10
any appreciable extent from the terms OF
the specifications
To the latter part OF the question, which
| understand To- mean whether OF M no' b tIJ
responsible If the bridge as designed re-
quires strengthening. I answer In the mega
tive. hasing nv conclusion upon court rul-
iEgs in the following cases
The opinion quotes from the rulings of
the court in three cases. The first is the
case Of the Mcknight Flintic stone Com
pany against the Mayor Of New York
case in which nom Watertight cellar
was the result of the contractor follow
ing plan and specifications prepared by
the city from which the contractor mad
no right 10 depart. even if the departure
would have produced a watertight cellar.
II the contractor had designed and exc
cuted a plan Of his own which resulted
in a wateTtight cellar. IL would not have
been a performance of the contract. foF
he was 10 produce a waterproof cellar 10y
following the plan and specifications
made by the defendant and not other
wise"
The second case quoted was that Of
Filbert against the city Of Philadelphia.
another case in which there was failure
on the part Of the contractor 10 meet
contract expectations. every line being
drawn. every grade fixed and every de
tail provided for by the city
The last case quoted is that OF Mac
Ritchle against the city Of Lake View.
which is described in the ruling as not
the case OF an independent workman. let
lint Of
bound hand and foot 10 the plan Of th-
defendant. The plaintiff had no right 10
alter the specifications. although the de
PENDANT had a qualified right 10 do 20.
Il agree To produce a certain result ac-
CordnG to my own plan implicitly war
rant its sufficiency, but IL | agree 10 pro-
duce that result by strictly following the
plan prepared by another party. ne in
plIedly warrants its sufficiency. Tho re-
sponsibilty rests upon the party who
fathers the plan and presents it [" the
other with the implied representation
that i; is adequate for the purpose To- be
accomplished"
40 REASON FOR NOT PAYING.
Closing his opinion regarding til
question - responsibility Of the Penn
sylvania Steel Company for the failure
OF the Blackwelrs Island Bridge TO come
up to contract specifications. the Cor
Poration Counsel SAYS:
Referring again to your question herein
before answered / should perhaps add that
I have puIpoSoly delayed answering your
communication. somewhat because or an
80 pested report from certain distinguished
~ l. "a % - fe an tgU
Of the Bla.k veli's Island bridge
Pursuant 60 action ~ the Board OF E.sti-
mate and Apport0ument, and under date
Instructed William H. Burr. Alfred Z. Boil
Ter and Henry ". Hodge 20 examine and
report upon the subject
Thslr reports 20 the Bridge commission
er. dated October - aud November Z, l90S.
respectlyeiy. have recently been published.
wise 20 the contractor. They certainly
show no reason FOR Withholding moneys
from the contractor because 81 failure 20
perform the contract as required therein.
II Will be noticed that the legal opin-
ion Of the CORPORATION Counsel gives two
opposite answers 10 what is practically
the same question. II holds that "A CON
rractual responsibility exists in failure
10 meet specification limitations on the
stresses developed provided the com
pany has departed or deviated Ia any
appreciable extent from the terms of the
contract" The specifications, which are
q part of the contract. clearly and spe-
cifiCally state what the stresses shall be
The duty Of preparing the detail ami
working drawings. wherein the stres5rs
were developed. rested with the con-
tractor under the terms Of his contract
Thus the city contracted for the use of
the engineering knowledge and talent Of
IN" contractor. and payment for that
engineering talent entered into the bid
Tor the work 10 a considerable percent
age of the contract price As the bridge
was constructed II failed To meet thu
needs Of its planned track equipment by
~ per cent because Of the failure TO keep
within the stress limitations defined by
his contract
The Corporation Counsel's opinion also
holds in the matter of design that the
contractor is not liable If the bridge as
designed requires Strengthening" II
seems obvious that il the contractor In
the detail and working drawings which
he was bound under the contract To pre-
pare and assume responsibility for had
kept within the stress limitations of the
contract there would have been no neces-
sity for any subsequent Strengthening