Gotham Construction Corp. v. City of New York

225 A.D. 829

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 15, 1929
• Status: Published

Opinion

Judgment unanimously affirmed to the extent of $10,373.97, with interest, same being the amount demanded by plaintiff’s first cause of action, which defendant concedes, and the judgment and the first cause of action are severed so that plaintiff may have judgment for this amount. In all other respects the judgment is reversed upon the law and the facts and a new trial granted, costs to appellant to abide the event. In our opinion, the words and figures appearing on the contract drawings in evidence “ mean high water elevation 100.°° Transit Comm, datum ” are not ambiguous, but have a clear and definite meaning which was well understood by plaintiff’s engineers at the time they submitted plaintiff’s bid for the work under the contract in question. They signify the horizontal plane of mean high water at Sandy Hook as determined by the United States Coast and Geodetic Survey, which had been adopted by the Transit Commission as a datum from which vertical measurements were taken and had been used by it with plaintiff’s knowledge on plans for work of this character for many years before plaintiff’s bid on this contract was made. These words did not warrant or represent that water in the ground or ground water was at that level and no higher. There was, therefore, no question of fact for the jury as to the meaning of these words. It may be, however, that plaintiff is entitled to damages for misrepresentations and concealment of material facts in regard to the actual level of ground water, similar to the cause of action upheld in McGovern v. City of New York (235 N. Y. 275). For this reason a new trial is granted. Lazansky, P. J., Young, Kapper, Seeger and Carswell, JJ., concur.