Spearin v. City of New York

178 A.D. 898

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 15, 1917
• Status: Published

Opinion

Per Curiam:

Plaintiff participated in the delay in executing the contract, and it does not appear that, so far as the defendant’s acts or omissions caused it, there was a culpable exercise of the power reserved to it in the contract to lay out areas of work. The plaintiff’s attitude, as it seems, was not that he was precluded from giving priority to all of the work south of the principal axis, but rather that at once, and continuously through the work, larger opportunities for fulfilling the contract were not afforded him. But in that regard the city, so far as appears, reasonably exercised the judgment which the contract gave it. The suspension of the work on September fifteenth to June twenty-fourth, by reason of the season, and the condition of other constructive work, was justified by the contract, provided the power was not abused. The burden was upon the plaintiff to show that the conditions at the time of the suspension did not justify it, or that such conditions had arisen from the defendant’s fault, or that the duration of the suspension was so unreasonable as to amount to breach of its duty under the contract. So upon the facts, and without consideration of the question whether any damages were waived by the extensions of time, it is concluded that the judgment should be affirmed, with costs. Jenks, P. J., Thomas, Mills, Rich and Putnam, JJ., concurred. Judgment affirmed, with costs.