People ex rel Cooper v. Duffey

169 A.D. 901, 153 N.Y.S. 713

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 15, 1915
• Status: Published

Opinion

Per Curiam:

This is an appeal from an order directing the issuance of a writ of certiorari to the former Highway Department to review its action in sustaining a protest to the acceptance of the Chestertown-Hague county highway built by the relator as a contractor. It appears from the petition, and from statements made at the hearing before the Commissioner, that during the period of the construction of the highway, the work was supervised and inspected by engineers and inspectors employed by the State, as well as by the county of Warren, and that upon the completion of the road the division engineer, the county superintendent of highways, and the supervisors of the towns of Chester and Horicon, in which such road was built, certified that it had been constructed in accordance with the plans and specifications. It was the unanimous opinion of the several engineers who had charge of the work, and who appeared upon such hearing, that the defects complained of in the highway were not chargeable to the contractor, but were due to faulty plans and specifications, in that throughout the whole road, and particularly along the soft ground bordering the river and lake, a heavier sub-base construction and thicker top coating were required in order to make a satisfactory highway. The relator contends that in view of these facts he is entitled to the writ asked for. While it would appear from the above-recited facts that the relator is entitled to be paid the balance due upon his contract, yet, under the following well-settled authorities, such relief cannot be obtained by the relator in a proceeding of this character. (Matter of Standard Bitulithic Co. v. Carlisle, 161 App. Div. 191; affd., 212 N. Y. 179; People ex rel. Schaw v. McWilliams, 185 id. 92; People ex rel. Hayes v. Waldo, 212 id. 156.) The order directing that a writ of certiorari be issued must, therefore, be reversed. All concurred; Kellogg and Howard, JJ., in result. Order appealed from reversed, without costs, and motion for writ denied.