McGarry Contracting Co. v. Board of Education of New York

New York Court of Appeals

McGarry Contracting Co. v. Board of Education of New York

30 N.E.2d 482, 284 N.Y. 218, 1940 N.Y. LEXIS 845

CourtNew York Court of Appeals

DecidedNovember 19, 1940

StatusPublished

Cited by5 cases

This text of 30 N.E.2d 482 (McGarry Contracting Co. v. Board of Education of New York) is published on Counsel Stack Legal Research, covering New York Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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McGarry Contracting Co. v. Board of Education of New York, 30 N.E.2d 482, 284 N.Y. 218, 1940 N.Y. LEXIS 845 (N.Y. 1940).

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Opinion

Per Curiam.

The provisions of paragraph 4 (d) of the specifications, as we read them, do not unambiguously cover *222 the plaintiff’s claim for the cost of removal of the old foundation walls. The existence of the old walls in the subjacent land was not a “ difference in the character of earth to be excavated ” and it was to “ such differences in subsoil conditions ” that paragraph 4 (d) was addressed. Nor is it clear enough to us that the old walls were “ obstacles to the securing of a good, solid foundation ” in the sense of paragraph 45 (a) of the specifications.

Moreover, article XXX of the contract provides that the reasonable value of extra work required by changes in the plans and specifications is to be added to the contract price. This provision of the contract was made inapplicable to excavation work when it was held below that the removal of the old walls was covered by the specifications above referred to. We cannot adopt that view. If there is any conflict between the provisions of the contract and those of the specifications, the former should be applied. (Dean v. Mayor, 167 N. Y. 13, 17.) We pass upon no other question.

The judgments should be reversed and a new trial granted, with costs to abide the event.

Lehman, Ch. J., Loughran, Finch, Rippey, Sears, Lewis and Conway, JJ., concur.

Judgments reversed, etc.

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Per Curiam.

The provisions of paragraph 4 (d) of the specifications, as we read them, do not unambiguously cover *222 the plaintiff’s claim for the cost of removal of the old foundation walls. The existence of the old walls in the subjacent land was not a “ difference in the character of earth to be excavated ” and it was to “ such differences in subsoil conditions ” that paragraph 4 (d) was addressed. Nor is it clear enough to us that the old walls were “ obstacles to the securing of a good, solid foundation ” in the sense of paragraph 45 (a) of the specifications.

Moreover, article XXX of the contract provides that the reasonable value of extra work required by changes in the plans and specifications is to be added to the contract price. This provision of the contract was made inapplicable to excavation work when it was held below that the removal of the old walls was covered by the specifications above referred to. We cannot adopt that view. If there is any conflict between the provisions of the contract and those of the specifications, the former should be applied. (Dean v. Mayor, 167 N. Y. 13, 17.) We pass upon no other question.

The judgments should be reversed and a new trial granted, with costs to abide the event.

Lehman, Ch. J., Loughran, Finch, Rippey, Sears, Lewis and Conway, JJ., concur.

Judgments reversed, etc.

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30 N.E.2d 482, 284 N.Y. 218, 1940 N.Y. LEXIS 845, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mcgarry-contracting-co-v-board-of-education-of-new-york-ny-1940.

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