Haight, J.
The plaintiff’s testator was the assignee of the claim of one Benjamin J. Carr, Jr., and brings this action to recover the damages suffered by him arising out of his contract with the defendant for regulating and grading Claremont avenue from One Hundred and Twenty-second street to One Hundred and Twenty-seventh street in the city of Hew York. In our review of the case it becomes necessary to discuss but one of the various claims in controversy between the parties, and that arises out of the second count in the complaint, in which damages are asked for the errors of the city surveyor in giving an incorrect grade of the street, by which the contractor was misled and excavated a greater amount of rock than was required by the contract and was then compelled to fill in the excavation so as to conform the grade to the specifications.
This case has been once previously considered in this court (170 N. Y. 219). The judgment was then reversed, upon
grounds not material to be now considered, but in the opinion then written it was stated that there could be no recovery for damages claimed by reason of the errors in the grade given by the surveyor. It is now claimed that upon the retrial further evidence was presented as to this claim, upon which 'the trial court, under the objection and exception of the defendant, submitted the same to the jury atid a verdict has been found thereon for the plaintiff amounting to the sum of $8,520. The new evidence upon which the plaintiff relies for the purpose of establishing this claim is found in the testimony of the contractor, and is to the effect that he saw Mr. Dean, the superintendent of street improvements, after the work had been in progress from fifteen to seventeen months, in his carriage at One Hundred and Twenty-second street and Claremont avenue, and then requested him to go and look at the discrepancy in the grade lines; that Dean replied to the effect that he could do nothing in the matter; that his letter to him was specific, and that he would have to follow the grades and lines as given by Mr. Slator, the engineer in charge. The letter referred to had been written on the 18th of July, 1890, six or eight months before, and in that letter there appears a similar statement to the effect that he would have to follow the lines and grades given by the engineer in charge. This letter was written in answer to a letter by the contractor calling his attention to the error in the lines of the street as given by the surveyor before any error in the grade had been discovered. This letter was considered by the court on the former review, and we shall not discuss it further. We are thus brought to the consideration of -the question as to whether the direction given by the superintendent of street improvements to follow the grade lines given by the engineer in charge justifies a recovery.
The contract, so far as material upon this branch of the case, provides that
“
a city surveyor will be employed by the parties of the first part to see that the work is completed in conformity to the profile, and to ascertain and certify the quantity of work done. Said surveyor at the request of the
contractor, will be directed to designate and fix grades for his guidance during the progress of the work without charge, provided that the said parties of the first part shall not be liable for any delay or for any errors of said surveyor in giving such grades, and said surveyor shall be considered as the agent of the contractor so far as giving such grades is concerned and not tlie agent of the City of New York.” A profile was attached to the contract, and the contract was executed by the commissioner of public works of the city and by the contractor, pursuant to an ordinance of the mayor, aider-men and commonalty of the city of New York, adopted on the 23d $Iay of July, 1889, in which the regulating and grading of this avenue was directed and sealed estimates were invited from bidders- according to the plans and specifications which were attached to and made a part of the contract. As we understand this provision of the contract it became the duty of the contractor to grade the street in accordance with the profile. He could employ his own surveyor, or if he asked the city surveyor would give him the grades, but upon the understanding that the city should not be liable for the errors of the surveyor, and that in giving such grades he should be considered to be the agent of the contractor. The evidence tends to show that the city surveyor did set stakes and mark the grades thereon and that the grades so marked were erroneous and that the contractor in excavating to the depth required by the marks upon the stakes excavated to a greater depth than required, which had to be refilled and that he suffered damages in consequence thereof.
The contractor now claims that he was- compelled to perform the work in accordance with the grades given by the surveyor, by the superintendent of street improvements, who, after the contractor had called his attention to errors in the grade, directed him to follow the lines and grades as given by the surveyor. As we have seen from the contract, the contractor was required to conform the street to the profile. He was not obliged to conform the grade to that given by the city surveyor, but could have ascertained the same through
any other surveyor, and if lie saw fit to request the city surveyor to give him the grades he made him his own agent and agreed that the city should not he liable for his errors. The direction of the superintendent of street improvements, to the contractor to proceed and conform the street to the grades given by the city surveyor, is inconsistent with these provisions of the contract and is a material variation of its terms. The question thus arises as to whether this officer had the power to modify or change the contract in this regard. He was a subordinate officer in the department of public works. His duties required him to watch the work of contractors and see that their work was done in accordance with the requirements of the contract and upon the completion of the work to give a certificate. We think he had no power to change or modify the contract, or to relieve the contractor from the provisions in question. This question was disposed of in this court, as early as the case of
Bonesteel
v. Mayor,
etc., of N. Y.
(22 N. Y. 162). In that case the common council of the city of Mew York had passed an ordinance directing the regulating and grading of Seventieth street from Tenth avenue to the Hudson river, the work to be performed under the directions of the street commissioner and the city surveyor. The contract provided that the rock was to be excavated two feet below the line of the curbstone grade. The contractor excavated the rock only one foot below such grade and claimed that this was done by the direction of the city surveyor. Davies, J., in delivering the opinion of the court, says with reference to this contention that
“
the ordinance under which the work was done provided that the street was to be regulated and graded under such directions as should be given by the street commissioner and one of the city surveyors. The first suggestion to be made in reference to this provision is, that the ordinance would seem to contemplate joint directions by the street commissioner and the city surveyor.
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Haight, J.
The plaintiff’s testator was the assignee of the claim of one Benjamin J. Carr, Jr., and brings this action to recover the damages suffered by him arising out of his contract with the defendant for regulating and grading Claremont avenue from One Hundred and Twenty-second street to One Hundred and Twenty-seventh street in the city of Hew York. In our review of the case it becomes necessary to discuss but one of the various claims in controversy between the parties, and that arises out of the second count in the complaint, in which damages are asked for the errors of the city surveyor in giving an incorrect grade of the street, by which the contractor was misled and excavated a greater amount of rock than was required by the contract and was then compelled to fill in the excavation so as to conform the grade to the specifications.
This case has been once previously considered in this court (170 N. Y. 219). The judgment was then reversed, upon
grounds not material to be now considered, but in the opinion then written it was stated that there could be no recovery for damages claimed by reason of the errors in the grade given by the surveyor. It is now claimed that upon the retrial further evidence was presented as to this claim, upon which 'the trial court, under the objection and exception of the defendant, submitted the same to the jury atid a verdict has been found thereon for the plaintiff amounting to the sum of $8,520. The new evidence upon which the plaintiff relies for the purpose of establishing this claim is found in the testimony of the contractor, and is to the effect that he saw Mr. Dean, the superintendent of street improvements, after the work had been in progress from fifteen to seventeen months, in his carriage at One Hundred and Twenty-second street and Claremont avenue, and then requested him to go and look at the discrepancy in the grade lines; that Dean replied to the effect that he could do nothing in the matter; that his letter to him was specific, and that he would have to follow the grades and lines as given by Mr. Slator, the engineer in charge. The letter referred to had been written on the 18th of July, 1890, six or eight months before, and in that letter there appears a similar statement to the effect that he would have to follow the lines and grades given by the engineer in charge. This letter was written in answer to a letter by the contractor calling his attention to the error in the lines of the street as given by the surveyor before any error in the grade had been discovered. This letter was considered by the court on the former review, and we shall not discuss it further. We are thus brought to the consideration of -the question as to whether the direction given by the superintendent of street improvements to follow the grade lines given by the engineer in charge justifies a recovery.
The contract, so far as material upon this branch of the case, provides that
“
a city surveyor will be employed by the parties of the first part to see that the work is completed in conformity to the profile, and to ascertain and certify the quantity of work done. Said surveyor at the request of the
contractor, will be directed to designate and fix grades for his guidance during the progress of the work without charge, provided that the said parties of the first part shall not be liable for any delay or for any errors of said surveyor in giving such grades, and said surveyor shall be considered as the agent of the contractor so far as giving such grades is concerned and not tlie agent of the City of New York.” A profile was attached to the contract, and the contract was executed by the commissioner of public works of the city and by the contractor, pursuant to an ordinance of the mayor, aider-men and commonalty of the city of New York, adopted on the 23d $Iay of July, 1889, in which the regulating and grading of this avenue was directed and sealed estimates were invited from bidders- according to the plans and specifications which were attached to and made a part of the contract. As we understand this provision of the contract it became the duty of the contractor to grade the street in accordance with the profile. He could employ his own surveyor, or if he asked the city surveyor would give him the grades, but upon the understanding that the city should not be liable for the errors of the surveyor, and that in giving such grades he should be considered to be the agent of the contractor. The evidence tends to show that the city surveyor did set stakes and mark the grades thereon and that the grades so marked were erroneous and that the contractor in excavating to the depth required by the marks upon the stakes excavated to a greater depth than required, which had to be refilled and that he suffered damages in consequence thereof.
The contractor now claims that he was- compelled to perform the work in accordance with the grades given by the surveyor, by the superintendent of street improvements, who, after the contractor had called his attention to errors in the grade, directed him to follow the lines and grades as given by the surveyor. As we have seen from the contract, the contractor was required to conform the street to the profile. He was not obliged to conform the grade to that given by the city surveyor, but could have ascertained the same through
any other surveyor, and if lie saw fit to request the city surveyor to give him the grades he made him his own agent and agreed that the city should not he liable for his errors. The direction of the superintendent of street improvements, to the contractor to proceed and conform the street to the grades given by the city surveyor, is inconsistent with these provisions of the contract and is a material variation of its terms. The question thus arises as to whether this officer had the power to modify or change the contract in this regard. He was a subordinate officer in the department of public works. His duties required him to watch the work of contractors and see that their work was done in accordance with the requirements of the contract and upon the completion of the work to give a certificate. We think he had no power to change or modify the contract, or to relieve the contractor from the provisions in question. This question was disposed of in this court, as early as the case of
Bonesteel
v. Mayor,
etc., of N. Y.
(22 N. Y. 162). In that case the common council of the city of Mew York had passed an ordinance directing the regulating and grading of Seventieth street from Tenth avenue to the Hudson river, the work to be performed under the directions of the street commissioner and the city surveyor. The contract provided that the rock was to be excavated two feet below the line of the curbstone grade. The contractor excavated the rock only one foot below such grade and claimed that this was done by the direction of the city surveyor. Davies, J., in delivering the opinion of the court, says with reference to this contention that
“
the ordinance under which the work was done provided that the street was to be regulated and graded under such directions as should be given by the street commissioner and one of the city surveyors. The first suggestion to be made in reference to this provision is, that the ordinance would seem to contemplate joint directions by the street commissioner and the city surveyor. The direction to excavate the rod only to the depth of one foot, would appear to have been given by the surveyor only, without the cooperation of the
street commissioner. But a conclusive'answer to this view of the case is, that the provision of the ordinance that the work should be done under such directions as should be given by these officers, conferred no authority upon them, or either of them, to change or modify in any essential particular the provisions of the contract made and entered into for the performance of the work. The ordinance of the defendants contemplated that the work was to be done under a written contract. The basis of that contract was the proposal or specification issued by the proper head of department, inviting estimates. When they were received and the award made to the lowest bidder, and that award confirmed by the common council, all the materials for the written contract were provided. When the contract finally became perfected, signed and executed, no officer of the defendants had any authority to change its provisions unless expressly authorized by the common council. No such authority has been shown in this case, or any acquiescence by the defendants in the departure from the terms of the contract made by the plaintiff's assignor with the acquiescence and pursuant to the directions of the city surveyor. Such departure had, therefore, no legal justification, and the plaintiff has, therefore, himself shown a non-performance on liis part of what he claims was his contract with the defendants.” Dillon in his work upon Municipal Corporations, at section 451 (third edition), says with reference to the variance or modification of a contract, that “ where the contract is made by ordinance in the statutory mode it can only be repealed or annulled in the same manner.” In
City of Terre Haute
v.
Lake
(43 Ind. 480) it was held that the common council of a city can only contract by an order, resolution or ordinance passed in the manner required by statute, and when thus made it can be repealed or annulled only by the vote of the common council. (See, also,
Glacius
v. Black, 50 N. Y. 145;
Fitzgerald
v.
Moran,
141 N. Y. 419;
Woodruff v. Roch. & Pittsburgh R. R. Co.,
108 N. Y. 39;
Hague
v.
City of Philadelphia,
48 Pa. St. 521, and
Forth. Pac. L. & M. Co.
v.
East Portland,
14 Oregon, 3.)
The judgment should he reversed and a new trial ordered, with costs to abide the event, unless the plaintiff within twenty days stipulates that the judgment may be reduced in the sum of §8,520, and if such stipulation is given, then the judgment be modified accordingly, and as so modified affirmed, without costs of this appeal to either party.