Silas Mason Co. v. City of New York

249 A.D. 538, 293 N.Y.S. 331, 1937 N.Y. App. Div. LEXIS 9644

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 11, 1937
• Status: Published

Opinion

Per Curiam.

We are of the opinion that the contract and the drawings properly construed indicate that the excavation in the disputed area was shaft excavation and not tunnel excavation; and that, as the board of transportation and its chief engineer certified, it was to be paid for as shaft and not as tunnel excavation. Moreover, the facts adduced at the trial tend to support this construction. That the contract and the contract drawings contain inconsistent or ambiguous provisions as to the type of work in the area in question was the city’s responsibility and not the contractor’s. The contract was prepared by the city and in case of doubt or ambiguity should be construed most strongly against it. (Evelyn Building Corp. v. City of New York, 257 N. Y. 501, 513.)

Accordingly the judgment in plaintiff’s favor should be modified by increasing the amount to the sum of $24,553.58, with interest from February 7, 1929, and as so modified affirmed, with costs of this appeal to the appellant.

Present — Martin, P. J., Townley, Glennon, Untermyer and Dore, JJ.

Judgment unanimously modified by increasing the amount to the sum of $24,553.58, with interest from February 7, 1929, and as so modified affirmed, with costs to the appellant. Settle order on notice.