Ingraham, J.:
This action was brought to recover upon three separate causes of action. The first was to recover the balance alleged to be due for [606] work and services performed under a contract between the plaintiff and the defendant. The second was to recover for the Value of extra work done by the plaintiff, and the third was for damages caused by the defendant’s preventing the plaintiff from performing the entire work under the contract. The contract was for regulating and, grading Dyckman street, in' the city of New York.The second cause of action was dismissed upon the trial, no exception being taken by the plaintiff. The answer of the defendant denied that the plaintiff had earned the balance claimed to be due under the first cause of action and alleged that a certain certificate given' by the officers of the defendant as to the amount of the work performed under the contract was false, fraudulent, untrue and •made in bad faith;, in that it did not state the true and correct amount and character of the work actually, done and materials actually furnished' by the plaintiff under the said contract; that the defendant had paid to the plaintiff, relying upon such certificate, the sum of $26,-514.99 over an.d above the true value, at the contract prices, of the work and materials actually done and furnished by the plaintiff under the contract, and demanded by way of counterclaim a judgment against the plaintiff for that sum; and in answer to the third- cause of action alleged that, under the contract and the plan and specifications therein referred to, the plaintiff was not entitled to do any work except that which he actually did in the said street, and denied that the defendant -wrongfully and unreasonably and in violation of the said agreement neglected to permit the plaintiff to furnish and provide all the materials and , labor for the purpose of the performance of the work to be done under the contract.
Upon the 'trial the third cause of action was dismissed by the court and the plaintiff excepted, and the question as to the amount of work performed by the plaintiff under the first cause of action was submitted to the jury who found a verdict for the defendant against the plaintiff, upon the defendant’s counterclaim,- for $20,694, and upon that counterclaim judgment was entered for the defendant against the plaintiff, from which judgment the'plaintiff appeals.
The contract upon which this action -was brought was executed on September 21, 1891. There was annexed to this contract a proposal for estimates for regulating and grading Dyckman street from [607] Hudson river to Exterior street and setting curbstones and flagging-sidewalks therein. These proposals recited an ordinance by the defendant which provided that “ Dyckman street, from Hudson river to Exterior street, be regulated and graded, the curbstones set and sidewalks flagged a space four feet wide through the center thereof, under the direction of the commissioner of public works,” and sealed estimates for this work were to be presented to the department of public works. Such proposals contained the survey- or’s estimate of the nature and extent of the work to be done and materials to be furnished, and the bidders were to state in their estimates the price for excavating earth per cubic yard, the price for excavating rock per cubic yard, the price for furnishing filling per cubic yard and the price for furnishing and setting the curbstones,, new flagging and new culvert per square or lineal foot. In pursuance of these proposals estimates for the work were furnished by the plaintiff and others. That furnished by the plaintiff was accepted and the contract executed. By the contract the party of the second part (the plaintiff) agreed to furnish and provide all the materials and labor for the purpose of regulating and grading Dyckman street from Hudson river to Exterior street and setting curbstones and flagging sidewalks therein, and to strictly conform to the specifications contained and set forth in said contract. It was further agreed that the plaintiff would complete the entire work to the satisfaction of the commissioner of public works and in substantial accordance with the said specifications and the plan therein mentioned.
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Ingraham, J.:
This action was brought to recover upon three separate causes of action. The first was to recover the balance alleged to be due for [606] work and services performed under a contract between the plaintiff and the defendant. The second was to recover for the Value of extra work done by the plaintiff, and the third was for damages caused by the defendant’s preventing the plaintiff from performing the entire work under the contract. The contract was for regulating and, grading Dyckman street, in' the city of New York.The second cause of action was dismissed upon the trial, no exception being taken by the plaintiff. The answer of the defendant denied that the plaintiff had earned the balance claimed to be due under the first cause of action and alleged that a certain certificate given' by the officers of the defendant as to the amount of the work performed under the contract was false, fraudulent, untrue and •made in bad faith;, in that it did not state the true and correct amount and character of the work actually, done and materials actually furnished' by the plaintiff under the said contract; that the defendant had paid to the plaintiff, relying upon such certificate, the sum of $26,-514.99 over an.d above the true value, at the contract prices, of the work and materials actually done and furnished by the plaintiff under the contract, and demanded by way of counterclaim a judgment against the plaintiff for that sum; and in answer to the third- cause of action alleged that, under the contract and the plan and specifications therein referred to, the plaintiff was not entitled to do any work except that which he actually did in the said street, and denied that the defendant -wrongfully and unreasonably and in violation of the said agreement neglected to permit the plaintiff to furnish and provide all the materials and , labor for the purpose of the performance of the work to be done under the contract.
Upon the 'trial the third cause of action was dismissed by the court and the plaintiff excepted, and the question as to the amount of work performed by the plaintiff under the first cause of action was submitted to the jury who found a verdict for the defendant against the plaintiff, upon the defendant’s counterclaim,- for $20,694, and upon that counterclaim judgment was entered for the defendant against the plaintiff, from which judgment the'plaintiff appeals.
The contract upon which this action -was brought was executed on September 21, 1891. There was annexed to this contract a proposal for estimates for regulating and grading Dyckman street from [607] Hudson river to Exterior street and setting curbstones and flagging-sidewalks therein. These proposals recited an ordinance by the defendant which provided that “ Dyckman street, from Hudson river to Exterior street, be regulated and graded, the curbstones set and sidewalks flagged a space four feet wide through the center thereof, under the direction of the commissioner of public works,” and sealed estimates for this work were to be presented to the department of public works. Such proposals contained the survey- or’s estimate of the nature and extent of the work to be done and materials to be furnished, and the bidders were to state in their estimates the price for excavating earth per cubic yard, the price for excavating rock per cubic yard, the price for furnishing filling per cubic yard and the price for furnishing and setting the curbstones,, new flagging and new culvert per square or lineal foot. In pursuance of these proposals estimates for the work were furnished by the plaintiff and others. That furnished by the plaintiff was accepted and the contract executed. By the contract the party of the second part (the plaintiff) agreed to furnish and provide all the materials and labor for the purpose of regulating and grading Dyckman street from Hudson river to Exterior street and setting curbstones and flagging sidewalks therein, and to strictly conform to the specifications contained and set forth in said contract. It was further agreed that the plaintiff would complete the entire work to the satisfaction of the commissioner of public works and in substantial accordance with the said specifications and the plan therein mentioned.
By the specifications which are incorporated in the contract, the work to be done is stated as follows : “ The street for its whole width is to be regulated and graded where required, in accordance with the plan and profile of the said street, dated July 15, 1891, on file in the bureau of street improvements. The carriageway and sidewalks are to be properly shaped. That portion- of the street which is above the grade lines is to be excavated, and such and so much of the material excavated as may, be fit for the purpose, and as may be necessary, shall be filled in those parts of the street which are below the grade lines, in the manner hereinafter provided. * * * But only the difference between the total quantity of filling to finished grade and line as shown in cross section, and the total quantity [608] of excavation to the finished grade and line- as shown in cross section, with slopes in each case as herein described, will be considered its filling to be furnished and as such to be paid for. * * * For culverts — The foundation shall be excavated to the depth necessary to put in the timber, as shown on the plan. This excavation shall be one foot wider than the outside dimensions of the culvert.” By the plan of the said street referred to in the contract and in the-specifications there is laid out a street running from the Hudson River Railroad Company’s tracks, adjoining the Hudson river, to a point upon the map 1,104^ feet east of Naegle avenue, which point is about 1,200 feet west of the driveway along the Harlem river, and which, it is claimed, is the Exterior street mentioned in the ordinance and the contract. Hpon this plan are shown cross sections of the street, from the Hudson River railroad tracks to the point 1,104 feet west of the driveway, showing the estimated amount of the excavation and the filling required and the details of the work to be" done. It is not claimed that any plan was ever prepared showing the cross sections and the elevations and depressions of the street east of this point specified upon this plan. The plan is indorsed: “ Plan and profile for regulating, grading, curbing and Sagging Dyckman street from Hudson river to Exterior street,” and the estimated work to be done is stated upon- this plan, and these estimates agree with the estimates recited in the proposals upon which this- contract was made. The city thus, by preparing this plan and profile of the work to- be done, indorsing it a “ plan and profile for regulating, grading, curbing and flagging Dyckman street from Hudson river to Exterior street,” making its estimates as to the work to- be done- based upon this plan and the measurements there .shown, and making this plan a part of the contract; providing in the specifications that the work to be done is to regulate and grade the street for its whole width in accordance with this plan and profile; providing -in such specifications that only the difference between the total quantity of filling to finished grade and line as shown in cross section, and . the total quantity of excavation to the finished grade and line as shown in cross section, with slopes in each case as herein described, will be considered as filling to be furnished and as such to be paid for, would seem -to indicate a clear intention that the work to be done [609] under the contract was only the work shown upon the plans. The work- to be done is to regulate and grade the street in accordance with this plan and profile. The filling is to be determined by the grade and line as shown in the cross sections, and the quantity of the excavations to be paid for is to be determined by the finished grade and line as shown in the cross sections of this plan, and the foundations for the culvert are to be excavated to a depth necessary to put in the timbers, as shown on the plan. Thus, it is this plan, as made a part of the contract, that is to determine the amount of work to be done; and under the express, covenants of the plaintiff he covenants and agrees that he will complete the entire work in substantial accordance with the specifications and the plan therein mentioned. The specifications state that the work to be done is to regulate and grade the street where required, in accordance with the plan and profile, and the amount of filling and excavation is to he determined by the grade and line as shown in the cross sections on this plan. It could not have been the intention of the parties to do •any work not shown upon this plan, or to regulate the street, at a point not shown upon the plan where there were no cross sections from which the work to be done could be determined and where the culverts necessary to be put in upon the extension were not shown. It is true that the work is described generally as the grading of Dyckman street from the Hudson river to Exterior street, hut there is nothing in the resolution that required the commissioner of public works to do all this in one contract; and the general description of the work to be done must be controlled by the specifications which limit such work to the portion of the street as shown upon the plan. We think, therefore, that the court was clearly right in •dismissing the third cause of action.
The remaining question in the case is as to the right of the plaintiff to recover under the first cause of action and of the defendant to recover under the counterclaim to that cause of action. The plaintiff proved the certificate of the officers mentioned in the contract, from which it ajipeared that the sum of $12,343 was due to the plaintiff from the defendant for work done under the contract, and then rested. The defendant then offered evidence tending to show that the certificate in question was false and to prove the actual amount that the plaintiff was entitled to receive under the [610] contract. By clause “ I ” of the contract it is provided that “ the said party of the second part (plaintiff) further agrees that the return of the city surveyor having charge of the work shall he the account by which the amount of materials furnished ■ and the work done shall be computed, and that he shall not be entitled to demand or receive payment for any portion of the aforesaid work or materials until the same shall be fully completed in the manner set forth in this agreement, and such completion shall be duly certified by the surveyor, inspector and superintendent of street improvements in charge of the work, aiid until each and every of the stipulations hereinbefore mentioned are complied with and the Work- completed to the satisfaction of the commissioner of public works, and accepted by him.” By clause “ N ” of the contract it is provided that “ the said parties of the first part, their successors and assigns, shall not,, nor shall any department or officer of the city of New York, be precluded or estopped by any return or certificate made or given hy any surveyor, inspector or other 'officer, agent or appointee, of said department of public works, or of said parties of the first part,, under or in pursuance of anything in this agreement contained,, from at any time showing the true and correct amount and character of the work which shall have been done and materials which shall have been furnished by the said party of the second part,, or any other person or persons under this agreement, nor from at any and at all times withholding payment of the several sums herein specified until the said party of the second part, when thereunto required on behalf of the said city, shall make and furnish sufficient and independent proof. of the- quantity and quality of the work and materials done and furnished by the said party of the second part or any other person or persons under this agreement.” The certificate of the surveyor in charge of the work, one Robert L. Waters, certified to the amount of the- work done under the contract, but under this clause of the contract above referred to the city of New York was not precluded from showing the actual amount of the work done, by the plaintiff and the amount due from the city to the plaintiff.
The defendant assumed this burden, and offered evidence tending to show that the actual amount of the filling done by the plaintiff was very much less than that stated in the certificate of the engineer. The sole question was as to the number of cubic yards of filling for [611] which the plaintiff was to receive forty-five cents per cubic yard. By the surveyor’s certificate it was certified that the plaintiff had furnished 165,318 cubic yards of filling. • If that was correct, the plaintiff was entitled to a verdict for $12,343.16. The evidence of the defendant tended to show that the total amount of filling furnished by the plaintiff was 19,183 yards; and if the jury believed this testimony the plaintiff had been overpaid the sum of $26,514.99, and for that sum the defendant asked a verdict against the plaintiff. This question of fact was left to the jury, and the jury found a verdict for the defendant for $13,000, to which the court subsequently added interest from the time, of the overpayment. The plaintiff strenuously insists that this verdict of the jury was against the weight of evidence. The testimony is quite voluminous, and an analysis of it is not essential to the determination of this question. The principal objection of the plaintiff to the defendant’s testimony is that it was based upon soundings made by the defendant’s witnesses, who were civil engineers, upon the original surface of the ground just outside of the filling of the street, and their estimates of the amount of filling required was in the nature of a mere opinion of experts, without any solid and substantial foundation.' It is quite true that none of the witnesses who testified for the defendant, and who made the estimates of the amount of filling furnished, saw the work as it was being done, but their estimates as to the amount of filling furnished were based upon this examination of the street as filled in after it was completed. The soundings in the land alongside of the edge of the filling tended to show the character of the soil underneath the street, as filled in, and upon which the filling had been placed, and if taken upon both sides at intervals of fifty feet would certainly indicate the nature of the ground upon which the filling had been placed. It is not disputed that if this filling had been placed upon the level of the ground, and the ground .was able to bear it, the amount awarded by the certificate would be largely in excess of the amount of filling that was actually furnished by the plaintiff. The question at issue is to determine how much of this filling settled below .the surface of the ground upon which it was placed ; or, in other words, how much of the filling was used below the original surface of the ground. The evidence of the defendant’s, witnesses tended to show that in all cases of filling upon soft ground or mud, where the filling to an [612] appreciable extent sank into the soft surface, mud waves were caused, and that there was but slight evidence of such mud waves in this locality. The nature of the ground was also explained to the jury, and the facts observed by the witnesses that indicated to them that but a comparatively small amount of filling had sunk into or beneath the surface were stated to the jury. It is quite apparent that if soft mud had been forced out by the filling the mud that was displaced must have spread out in some direction; and if there was no evidence of such spreading out or of such mud waves it would justify a finding that no considerable portion of this. filling had been absorbed in that way. This was not the evidence of an opinion of the witnesses, but a statement of facts observed by the witnesses, several of whom were civil engineers of prominence and recognized ability; and this evidence, if believed by the jury, tended to show that no such amount of filling could possibly have been used as was claimed by the plaintiff. On the other. hand, there was. evidence produced by the plaintiff which tended to. show that a considerable portion of the land over which this street passed was extremely soft, and a large amount of filling was buried beneath tire original surface of the land, but this, we think, was a fair question for the- jury to determine from' the evidence; and while the burden was upon the defendant to show that the certificate given under the contract was false, the verdict rendered in favor of the defendant was sustained by evidence which, if believed by the jury, necessarily forced them to the conclusion to which they arrived..
The court charged the jury:.“ The burden of proof upon this point is, therefore, upon the defendants, and the question, therefore, is, have they overcome the plaintiff’s case as supported by the certificates, and the proof given by the plaintiff in rebuttal of the defendants’ case by sufficient evidence on their own part? They are bound to do it by proof of facts and circumstances which are convincing, and not by more theory not founded on the actual facts.” That was a correct statement of the duty of the jury, and certainly as favorable to the plaintiff as was justified. We think, therefore, that the finding of the jury as to the amount of filling actually furnished by the plaintiff was supported by the evidence, and the court would not be justified upon that ground in setting aside the verdict. The effect of this certificate is entirely different [613] from that of a certificate given under a contract whereby it is agreed that the certificate of an engineer or architect shall be binding and conclusive upon both parties as to the amount payable under the contract. Under contracts of the character of the one under which the plaintiff did the work in question, while a certificate is essential to enable the plaintiff to recover, that certificate is by the express terms of the contract not to preclude the defendant from proving, upon the final settlement of the amount due under the contract, the actual amount of the work done; and thus the burden was upon the defendant to overcome by a preponderance of evidence the presumption which followed the granting of the certificate that the certificate was, in fact, erroneous, and that the work actually done was less than that stated in the certificate. As before stated, the defendant assumed that burden, and we think that the evidence was suf- . ficient to justify the submission of that question to the jury, and their verdict should not be interfered with. This voluminous record has been examined with care, and we have not attempted to analyze the evidence, but have simply stated the general conclusions at which we have arrived.
From the whole case we think the judgment was correct and that there was no error committed which would justify a reversal.
The judgment is affirmed, with costs.
Van Brunt, P. J., and McLaughlin, J., concurred; Barrett and Rumsey, JJ., dissented.