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at a line ten (10) feet westerly of and parallel to the bulkhead line, allowance will be made and paid for to a positive line which is forty-five degrees to the horizontal.” This exception is very clumsily drawn and raises various questions. “Known" loose rock-when and by what means is it to become known? "The cross-sections”-what cross-sections? "The indicated rock"-when, where and how indicated? “A positive line"-what is there positive about a line whose direction is stated, but whose starting and finishing points are not stated, whose angle may turn either up or down? I suppose that “positive" must be taken in its third sense, as defined in the Century Dictionary “arbitrarily laid down: determined by declaration, enactment or convention and not by nature."

Now, the very next sentence of the specifications relates to certain "typical sections," and the defendant insists that these are the cross-sections referred to in connection with the 45-degree line, and that the word "indicated” means indicated on these. I think that there are various answers to this suggestion, In the first place, there are only 16"typical sections" for over a quarter of a mile of river front, and the very fact that they are called "typical" would indicate that they do not give complete information. In the second place. the specifications go on to say that “these sections are given as a guide only, and show approximately what the contractor may expect to encounter in the prosecution of the work.” The "allowance” to the contractor is a payment to him, and at a previous point the specifications had stated that his payment would be "measured by a comparison of accurate cross-sections." In the third place, the "typical sections" are represented by the city--for the specifications are drawn by the city-as giving information upon three subjects only: First, "the existing rock bottom,” which is the top of the loose rock; second, "the corresponding theoretical sections to be obtained,” which means the so-called 9-foot and 15-foot lines, and the inclosed space as far out as "the contour line, fifteen (15) feet below mean low water"; and, third, "the corresponding limiting lines to which payment will be made when it is impossible to produce the thcoretical sections,” which to my apprehension means the 10-foot and 16-foot lines. In the fourth place, it was impossible before the work began, at any point except where solid rock ledge came right up to or very close to the river bottom, to ascertain where it would be necessary for the 45-degree line to spring. The specifications expressly provide that "all material of every description under the contract is to be measured by a comparison of accurate cross-sections." In the entire absence of accuracy about this springing point, I do not see how the "typical sections” can be regarded as the “accurate cross-sections," which plaintiff was thus told he could rely upon.

But the city urged on the trial that these accurate cross-sections were only to be taken "before the commencement and after the completion of the work." It asseverated that no intermediate cross-section can be considered. we would be led to the result that the cross-section taken after the completion of the work is the one which must fix the springing point, and that it was error to exclude plaintiff's calculation based on that hypothesis, for, if the original and the final soundings were the only ones that can be considered, then it seems clear that the original ones must be taken for the top surface of the excavation, and the final ones for the bottoin surface of it

, and the actual springing point is located at the bottom surface, while the point to which a pipe would pierce at the time when the top surface is being sounded has no relation to the proper springing point at all. But the plaintiff's hypothesis was rejected for two reasons: First, that it would subject the city to the danger of fraud; and second, that it would leave no function for the words "known” and “indicated" in the specifications.

It seems to me impossible to reach a reasonable conclusion without assuming that there is some word in these specifications which is used with a double meaning, and a reasonable result can be reached if a double meaning is attributed to the word "work” in the clause which I have last quoted. The first step taken by plaintiff was to go over the whole area with what is called a clamshell dredge and carry away all the loose rock which can easily be removed by that means. It is fair to assume that whatever loose rock was left after this operation either that it was so small in amount that it

If so,

was cheaper for plaintiff to let it slide into the excavation and scoop it out again without additional compensation than to go on clamshelling for it all! more, or else so large that it had a good chance of staying where it was until the cavity was excavated and walled up again. As soon as the clanshell work was completed, and (except in the locality as to which defendant has a verdict) before blasting began, the city made a careful series of measurements over the whole area with both disc and rod. I think that for the purpose of fixing the springing point the "work” may be said not to have been begun until the blasting began. Then the junction between the loose rock and the ledge rock became "known" within the meaning of the specifications, and it should have been so "indicated" upon the cross-sections which were made by the Dock Department after the whole work was completed. This was not done. The soundings made by the city after the clamshell dredging were not used by the assistant engineer in making up the computation upon which the chief engineer's certificate was based. Instead, he used the old pipe soundings made before the contract was let, and when the line between the loose rock and the ledge rock was impossible of ascertainment. This deprived the contractor of any compensation for a very considerable amount of work, no part of which was “extra work" or "additional work" in any proper sense, but all of which work was necessitated and contemplated by the contract. It is not fair, and I do not think that it was good law.

[4] So far as the chief engineer's certificate in this case was based merely upon miscalculation, the jury was directed to find in favor of the defendant. But so far, and so far only, as it was based upon a palpable mistake of lawupon misconstruction by an assistant engineer of the specifications which he himself had been permitted to drawthe direction was in favor of the plaintiff. Such a certificate is disputable for mistake of law. Burke v. Mnyor, 7 App. Div. 128, 40 N. Y. Supp. 81. It has, indeed, been ruled that a mistake, in order to be the basis of relief, not only must be palpable, but "in general

must appear on the face of the award or in some paper delivered with it," and the rule is sometimes stated without the qualifying phrase "in general.” Sweet v. Morrison, 116 N. Y. 19, 32, 33, 34, 22 N. E. 276, 15 Am. St. Rep. 376; Smith v. Mayor, 12 App. Div. 391, 391–393, 42 N. Y. Supp. 522. But the question does not seem to have been necessary to the decision, and in the Burke Case the mistake does not seem to have been apparent upon the face of the certificate. The rule in a case like this may be somewhat different from that applicable to an award upon a voluntary arbitration between private parties.

[5] The records of the Dock Department contain a set of cross-sections made up on the basis of these intermediate soundings, and while those cross-sections are erroneous in certain details, and never were approved by the chief engineer, and were not "delivered with” the certificate, I think that their existence is sufficient to give jurisdiction to the court to consider the case. As to that part of the work for which a verdict was directed there was no dispute of fact and no question proper for a jury to pass upon. The assistant engineer, who was responsible for the chief engineer's certificate, practically agreed with plaintiff in the computation when he used the method of computation upon which the certificate had been based.

[6] All the evidence as to the measurements upon which the certificate had been based, and as to the measurements made by the city after the clamshelling was finished and before the blasting began, was dragged by plaintiff's counsel out of the city's archives and its employés. The only piece of evidence which to any extent rested upon other testimony was the date when blasting began; and this stands undisputed, although the city put upon the stand an inspector of the Dock Department who had followed and watched the plaintiff's employés during the entire course of the work, taking and preserving accurate records of the date and location of every act of drilling and blasting by them. To put such a witness upon the stand, and then not to bring out the documentary evidence which he had prepared as to the dates in question. was to admit that plaintiff's evidence as to those dates was correct. See McGuire v. Hartford Fire Insurance Co., 7 App. Dir. 575, 590, 40 N. Y. Supp. 300; Reehil v. Fraas, 129 App. Div. 504, 114 N. Y. Supp. 17, and cases

H

[1] Under such circumstances it was proper to direct a verdict upon plaintiff's uncontradicted testimony. Hull v. Littauer, 162 N. Y. 569, 57 N. E. 102.

[8] The only question raised by defendant's brief is that of interest, to which I entertain no doubt that plaintiff is entitled. Sweeny v. City, 173 N. I. 414, 66 N. E. 101.

The case is difficult, but not extraordinary. Hence there is no jurisdiction to consider plaintiff's motion for an allowance. That, as well as defendant's motion for a new trial, must be denied.

Argued before INGRAHAM, P. J., and McLAUGHLIN, LAUGH-
LIN, CLARKE, SCOTT, MILLLER, and DOWLING, JJ.
F. Nevius, for appellant.
C. L. Barber, for respondent.

PER CURIAM. Judgment and order affirmed, with costs, on the opinion of Mr. Justice Whitney in the court below on the motion made by defendant for a new trial. Order filed.

SIEBRECHT V. SIEBRECHT.

(Supreme Court, Special Term, Westchester County. October, 1911.) AUSBAND AND WIFE (8 48*)—CONVEYANCE OF PROPERTY_AGREEMENT TO RECONVEY-EVIDENCE.

A wife about to undergo a serious surgical operation having conveyed her property to her husband, evidence held insufficient to warrant a finding that such conveyance was made on his promise to reconvey in case she recovered.

[Ed. Note.--For other cases, see Husband and Wife, Cent. Dig. $8 242248; Dec. Dig. $ 48.*] Suit by Julia W. A. Siebrecht against Henry A. Siebrecht, Jr., to compel a reconveyance of certain premises. Judgment for defendant.

Henry G. K. Heath, of New York City, for plaintiff.
John M. Gardner, of New York City, for defendant.

MILLS, J. This is an action in equity brought by plaintift, a wife, to compel the defendant, her husband, to reconvey to her certain premises, land and house, situated on North avenue in the city of New Rochelle

, which she, in January, 1908, conveyed to him, and upon which, at that time, they, with their children, resided. When such conveyance was made, she was about to go to a hospital and undergo there a serious operation. She went on the 12th of February following, the deed having been acknowledged on the 31st of January, was operated upon, recovered, and returned to their home. Subsequently, various marital differences having arisen between the parties, or at least having become acute, she demanded that the husband reconvey the premises to her. He refused, and this action resulted.

The case is a difficult one to decide. I cannot but feel a strong sympathy with the plaintiff as a wife and mother who seems to have re“For other cases see same topic & S NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

ceived from the defendant, her husband, at least inconsiderate if not harsh treatment; but, whatever may be said or thought of what a jury might do, it is supposed that a judge may be able to decide even such a case uninfluenced by such a feeling.

The important and controlling question is one of fact, viz.: Has it been established that the defendant obtained from the plaintiff the deed, dated January 24, 1908, and acknowledged January 31st, upon his promise that, if she survived the operation, he would, upon her return from the hospital, reconvey the property to her?

It is contended by the learned counsel for the plaintiff that, in view of the confidential relation then existing between the parties as wife and husband, and of the plaintiff's sick condition and her probably consequent at least partial impairment of mental and physical strength, the burden of proof should be held to rest upon the defendant to establish that the transaction of the taking of the deed was fairly conducted upon his part and well understood by the plaintiff; that is, that she was making an absolute and final conveyance of the property. I think that this contention is well made and shall proceed to judge the evidence by that standard.

It is not claimed, however, that the plaintiff did not, when she executed such deed, understand its absolute final form. Her only impeachment of the good faith of the defendant in the transaction is her claim that he made the alleged promise to reconvey upon the stated condition; and that, such condition having subsequently happened, he has refused to perform his promise,

She has testified clearly and positively to the making of the promise; and of course, if it were made, its breach is apparent and indeed confessed. Her appearance under examination, even upon the crossexamination, was that of a truthful witness. I can find, however, in the rest of the evidence, nothing which seems to me to serve as a direct or even circumstantial corroboration of her statement that such promise was made, save, perhaps, to some extent, the circumstances that prior to that time the record title to those premises, and earlier that of the Rochelle Park property, the proceeds of which in substance purchased the former property, had been in her individual name, although the original purchase had been made with the defendant's money; and also that the hazard to the plaintiff of the impending operation was ample ground for the defendant to seek to have the formal and record title transferred to him until such hazard should

be past.

In these modern days, however, the circumstance that a husband engaged in business permits the record title to his home place to stand in his wife's name is far from conclusive upon the question whether it was his, or rather their, real intent and understanding that the property should be really hers, or merely that she should, for the time being, hold the record title subject at all times to convey it as he may direct. The court may take notice from actual judicial experience that, when the contest is between the husband and his creditor, wife and husband often both testify that the real intent and understanding was that the property should be the wife's absolutely and always.

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This, however, is the less usual case where the controversy is between wife and husband.

The declarations of the defendant, testified to by the witness Mrs. Alexander, were made long before the transaction of the deed of January, 1908, and merely show that he intended the North avenue property as a family home; the same to be held in the wife's name. This does not go so far as to indicate that it was not his intention to take the title in his own name under changed circumstances. Defendant's repeated declarations to his sister-in-law, Mrs. Alice May Siebrecht, do not appear to be significant upon the question involved. All were made prior to this transaction of the deed of January, 1908. At one time that witness summarized them thus (he said): "That everything he had was in his wife's name," which was then literally true and is entirely consistent with either theory of the case. As moral proof, the most significant cotemporaneous declaration proven is that contributed by the testimony of defendant's mother, to the effect that about the time of the making of the deed in January, 1908, plaintiff said to her: “I am going to deed the house back to Henry (meaning the defendant). It would be better for Henry and the children if anything happened to me.”

But this must be considered as a declaration by the plaintiff put in evidence in her own behalf. It is most significant, moreover, that the plaintiff did not then tell her mother-in-law, if such were the fact, that Henry, the defendant, had promised to convey the property back to her if she survived the operation. It is strange that, in telling her mother-in-law so much as she did, she omitted to tell the rest, which is here the main thing.

Upon the other side of the case, defendant has testified positively and clearly that no such promise was made by him; that in fact, all along, back to within a few days after the deed of the North avenue property was originally taken to his wife, there had been in the safe at home, with the other papers to which he and she had access, an unrecorded deed of that property by her back to him, which had been drawn and executed by her before the witness Jenkins; and that the occasion for the making of the deed in January, 1908, was the discovery by him of the fact that such deed could not be found, and also the fact of the approaching operation.

The fact, therefore, that the operation was about to be performed, was, according to the theory and contention of each party, the immediate moving cause of the making of the deed in January, 1908. Such fact by itself, being consistent with either theory, cannot be regarded as of controlling force.

If it be true that there was such a prior deed by plaintiff to defendant, that fact must be regarded as very important, and indeed, I think, as controlling, in view of the condition of the other evidence. Jenkins, called as a witness for the defendant, has testified distinctly and positively that within a few weeks, he thinks in April, after the deed from Craft to plaintiff in January, 1906, of the North avenue property was made, he prepared or had prepared in his office a deed

137 N.Y.S.-2

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