In re the Standard Bitulithic Co.

161 A.D. 191, 146 N.Y.S. 386, 1914 N.Y. App. Div. LEXIS 5323

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 4, 1914
• Status: Published

Opinions

Kellogg, J.:

In October, 1912, the Standard Bitulithio Company and the State of New York, acting through the then existing Commission of Highways, entered into a contract for the construction by said company of a section, about eleven and one-half miles in length, of a State highway,'route No. 35 on Long Island, known as the Smithtown-Port Jefferson road. Soon after the making of said contract said company made preparations for building the road, and on April 8, 1913, as soon as the grade lines had been given, commenced work on the grading and culverts. On May 31, 1913, the State Commissioner of Highways, who, pursuant to chapter 80 of the Laws of 1913,

* which became effective March 14,1913, succeeded the State Commission of Highways and the State Superintendent of Highways, made the order complained of as follows:

“May 31, 1913.

“Whereas, A contract was entered into October 30, 1912, between the Standard Bitulithio Company of New York City, party of the first part, and the people of the State of New York, party of the second part, for the construction of the Smithtown-Port Jefferson State Highway, No. 5232, county of Suffolk, having a length of 11.59 miles; the specifications calling for a 4" bottom course of Cementitious Hudson Eiver gravel, with top course of Warrenite pavement; the estimated cost of the improvement to be $222,134.80, and

“Whereas, The performance of such contract would be against public policy and would be of irreparable damage to the State for the reason that if the highway is improved according to specifications it will not provide a proper highway to construct in said locality, and

“Whereas, After a careful investigation of the conditions in the locality through which this highway was to be constructed and a study of the plans and specifications, the Committee of Advisory Engineers has recommended the cancellation of said contract; it is

“ Ordered, That the contract for the improvement of the Smithtown-Port Jefferson State Highway No. 5232, county of Suffolk, be and is hereby canceled.

“ (Signed) R. K. FULLER,

“ Secretary.

“ (Signed) J. N. Carlisle,

“ Commissioner.”

The contractor is not satisfied with that determination and wants it reviewed by certiorari. The officer charged with the responsibility of performing the contract believes that the road as planned would not be for the interest of the State. The contractor thinks otherwise, and desires the court to pass judgment between them. This is in effect an attempt to compel the specific performance of a contract by certiorari, which is not a recognized remedy for that purpose.

In People ex rel. Ryan v. Aldridge (83 Hun, 279) it is stated: “No person can be compelled, by any process of law, to prosecute any enterprise undertaken for purposes of his own beyond the point at which he sees fit to discontinue the undertaking; and if he has contracted with another person to do the work for him and afterwards refuses to have it done, the contractee does not relieve himself from the obligation of the contract, but the remedy of the contractor is confined to his action of damages for its breach. The contract is not abrogated, but, in the nature of things, neither party can compel its specific performance by the other. The rule applies as well to bodies corporate and politic as to individuals, and even to the State,” etc.

The Commissioner is the sole representative of the State and the responsibility as to the State highways rests upon him. By section 132 of the Highway Law (as amd. by Laws of 19Í3, chap. 517) the performance of the contract is under his supervision and control. His authority in determining the plan and changing the plan of a State highway is practically unlimited. His determination that the public good requires that a road under contract shall not be built is conclusive upon the contractor, irrespective of section 132. The Commissioner cannot, however, destroy the effect of a valid contract and deprive a contractor not in default of the benefits he would derive from performance. If the Commissioner stops work upon a contract without cause, the State is responsible to the contractor for the loss of his contract. In my judgment section 132 of the Highway Law has no application to the question under consideration. That section contemplates a suspension of the contract, or a stopping of the work, growing out of the fact that the work is not being performed according to the contract or for the best interests of the State. It contemplates a default or a failure to properly perform by the contractor.

But if that section applied to the case it is not controlling here. The fact that the work has actually been stopped by the Commissioner must be recognized by the contractor. A determination by the Commissioner that work is stopped because of the default of the contractor does not establish the default or prejudice the contractor if he is not at fault. The section contemplates no notice to the contractor, or hearing on the merits. The determination, therefore, that the contractor is at fault is not binding upon him, and for that reason is not reviewahle by certiorari. (Matter of Keystone State Construction Co. v. Williams, 152 App. Div. 575.) But the Commissioner has not suggested that the contractor is at fault. The State has stopped the work solely because of defects in the plan of the work itself. The work is, therefore, at an end, and the contractor must pursue his remedies in the manner provided for that purpose. The order appealed from should be reversed and the proceeding dismissed, with costs to the relator.

All concurred; Lyon, J., in result; Smith, P. J., in memorandum.

Amends Highway Law (Consol. Laws, chap. 25; Laws of 1909, chap. 30). — [Rep.