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and as I shall assume, been completed when the commissioners were appointed. But it had been initiated by the local board of improvements and approved and authorized by the board of estimate, and the contract for the work had been let, long before the appointment of the commissioners. I do not think that the fact, if it be the fact, that the work was not actually completed at the time of the appointment of the commissioners, brings this case within the provisions of the charter (Laws 1901, c. 466) authorizing the commissioners to make an award for damages resulting from an “intended regulation" of the street (sections 979, 980). Section 979 provides in part that the commissioners may order:

"A profile or plan * showing the intended regulation of the street or part of a street, with regard to the opening of which they have been appointed, as to the elevation or depression thereof, after the same shall be opened, extended, enlarged, straightened, altered or otherwise improved, as the case may be, and also profiles or plans

showing the intended regulation of the adjacent street or streets, as to the elevation or depression thereof, after such improvement."

Section 980, as in force at the time of the appointment of the commissioners in this proceeding, provided, among other things, as follows:

"If the said commissioners of estimate and assessment shall judge that any intended regulation will injure any building or buildings not required to be taken for the purpose of opening, extending, enlarging, straightening, altering, or improving such street or part of a street, they shall proceed to make, together with the other estimate and assessments required by law to be made by them, a just and equitable estimate and assessment of the loss and damage which will accrue, by and in consequence of such intended regulation, to the respective owners, lessees, parties and persons, respectively, entitled unto or interested in the said building or buildings so to be injured by the said intended regulation; and the sums or estimates of compensation and recompense for such loss and damage shall be included by the said commissioners in their report and included in the assessment for benefit."

No substantial change, so far as the question now under consideration is concerned, has been made by subsequent amendments.

The “intended regulation" contemplated by these sections is obviously a regulation to be made in connection with the opening of the street; and they do not apply to a change of grade which is wholly independent of the street opening proceedings, as is the case here, whether the actual work of grading is completed at the time of the commencement of the street opening proceedings or not.

The authorities cited on behalf of the objector serve to confirm this conclusion. In Matter of Mayor, Perry Avenue, 118 App. Div. 874, 878, 103 N. Y. Supp. 1069, 1072, First Department, the profile map was, it is true, filed prior to the appointment of the commissioners; but it is apparent that the regulation was not intended to be made until after the acquirement of the land condemned, for the Appellate Division said:

“It is said that Perry avenue was actually worked and used as a street, at its natural grade, for some time before proceedings for its acquisition by the city were initiated; but the profile map filed in 1895 shows that it is proposed, after acquisition, to raise its grade about 10 feet.”

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And in Matter of Mayor, White Plains Road, 106 App. Div. 133, 136, 94 N. Y. Supp. 110, 112, Second Department, the court said:

"It is clear that the proposed change of grade is an incident to the widening of the street for which this proceeding was instituted.”

The objection interposed on behalf of the owner of damage parcel No. 92-A is therefore overruled.

With respect to the claim of the owners of damage parcel No. 171 for damages for the closing of Fourteenth avenue, I understand from the briefs that the Corporation Counsel and the counsel for the claimants have agreed that this claim shall be presented to the same commissioners; but whether as part of this proceeding, or as an independent proceeding, they do not seem to have wholly agreed. That matter can be determined on the settlement of the order.

Subject to proper provisions for the presentation of this claim, the report of the commissioners will be confirmed. Settle order on notice.

(151 App. Div. 941.)

R. G. PACKARD CO. V. CITY OF NEW YORK.

(Supreme Court, Appellate Division, First Department. June 28, 1912.)

1. MUNICIPAL CORPORATIONS (8 360*)-CONTRACT FOR PUBLIC WORK-CON

STRUCTION.

Under a contract with a city for excavation work, setting forth an engineer's estimate of the amount to be excavated, and providing that no payments sbould be allowed for any work in excess of such amount plus 5 per cent. ; that the estimate was approximate only and formed no part of the contract; that bidders must judge for themselves as to the amount of the work; that such estimate was not to be used for measurement or payment; but that all material was to be measured in accordance with data, part of which was not obtainable until the completion of the work; and that additional work might be done under written order from the city for a price not to exceed 5 per cent. of the contract price or total cost of the work and materials—the 5 per cent. clause referred to additional or extra work that might be done under the contract, to be computed upon the cost by actual measurement and not upon the estimated cost.

[Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig.

$$ 892, 89242; Dec. Dig. § 360.*] 2 MUNICIPAL CORPORATIONS (8 288*)–CONTRACTS-VALIDITY-APPROPRIA

TION. .

Greater New York Charter (Laws 1901, c. 466) $ 1541, which provides that no expense can be incurred in excess of a previous appropriation, does not apply to an excavation contract at a fixed rate per yard for work, the exact cost of which is not ascertainable until measurement after completion of the work; such contracts being provided for in section 149, which requires them to be indorsed by the comptroller with a certificate that there is a balance of appropriation sufficient to pay the "estimated expenses of executing such contract, as certified by the officer making the same."

[Ed. Note.---For other cases, see Municipal Corporations, Cent. Dig. $8 758–761; Dec. Dig. 8 288.* ] For other cases see same topic & S NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

3. MUNICIPAL CORPORATIONS (8 352*)–CONTRACT FOR PUBLIC WORK-CON

STRUCTION — EXCAVATION CONTRACT AMOUNT OF WORK "ACCURATE
CROSS-SECTIONS","CORRESPONDING THEORETICAL SECTION8"-"TYPICAL
CROSS-SECTIONS"-"WORK."

A contract for the excavation of a bulkhead, the inner line of which was about 9 feet inshore from an established bulkhead line, and the base of which was to be 15 feet below mean low-water mark with allowance to the contractor for whatever he might excavate within an extra foot in each direction, specified that no payment should be made for excavation beyond those limits, “except where known loose rock is shown in the cross-sections above the top grade of the indicated rock, at a line ten 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,” and specified, as to "typical sections," that they were given as a guide only and to show approximately what the contractor might expect to encounter in the prosecution of the "work," and represented the "typical sections" as information upon (1) "the existing rock bottom which was the top of the loose rock; (2) the corresponding theoretical sections to be obtained, meaning the so-called nine-foot and fifteen-foot lines; and (3) the corresponding limiting lines to which payment will be made when it is impossible to produce the theoretical sections; and that all material was to be measured by comparison of 'accurate crosssections.'" The points at which the 45-degrees lines should commence could not be ascertained before the work commenced. Held, that the “corresponding theoretical sections” meant the 10-foot and 16-foot lines ; that the "typical” cross-sections could not be regarded as the “accurate cross-sections"; that "work” had a double meaning, and, for the purpose of fixing the beginning points of the 45-degree lines, did not begin until the blasting began, when the junctions between the loose rock and the ledge rock became “known," so as to be “indicated" upon the cross-sections made by the city after the work was completed; and that work to such junctions was necessitated and contemplated by the contract.

[Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. 8 883; Dec. Dig. & 352.*

For other definitions, see Words and Phrases, vol. 8, pp. 7517–7519;

vol. 8, p. 7837.] 4. MUNICIPAL CORPORATIONS ($ 358*)—PUBLIC IMPROVEMENTS–CERTIFICATE

OF ENGINEER-MISTAKE OF LAW.

The certificate of a city engineer as to the amount of excavation work done under a contract is disputable for mistake at law.

[Ed. Note. For other cases, see Municipal Corporations, Cent. Dig.

$ 890; Dec. Dig. $ 358.*] 5. MUNICIPAL CORPORATIONS (8 374*)-PUBLIC IMPROVEMENTS–CERTIFICATE

OF ENGINEER- EXISTENCE OF RECORDS,

In a contractor's action to recover for excavation for a bulkhead line, to be measured by certificate of the city engineer, the existence of records of the engineer's department containing a set of cross-sections made up on the basis of soundings before completion of the work, erroneous in certain details, never approved by the engineer, and not delivered with the certificate, is sufficient to give the court jurisdiction to consider the case, although work contemplated by the contract could not be computed until after blasting had begun and the beginning points of 45-degree lines were fixed.

[Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig.

$8 905, 910; Dec. Dig. 8 374.*] 6. EVIDENCE ($ 591*)-ADMISSIONS-SUPPRESSING TESTIMONY.

Where all the evidence as to disputed measurements in a contractor's action to recover for excavation work was produced by the plaintiff, and

the only matter of evidence arising at all upon other testimony was as *For other cases see same topic & $ NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

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to the date when blasting work had begun, the action of defendant in putting on the stand a witness who had watched the work and had taken and preserved records of the dates, etc., without offering such record evidence, was to admit that the plaintiff's evidence as to that date was correct.

(Ed. Note.—For other cases, see Evidence, Cent. Dig. $ 2431; Dec. Dig. $ 591.*] 7. TRIAL ($ 141*)-TAKING CASE FRON JURY-WEIGHT OF EVIDENCE.

Where the plaintiff's evidence was uncontradicted, except upon a matter as to which defendant's failure to produce record evidence in its possession amounted to an admission, it was proper to direct a verdict for the plaintiff.

[Ed. Note. For other cases, see Trial, Cent. Dig. $ 336; Dec. Dig.

141.*] 8. MUNICIPAL CORPORATIONS (8 374*)--CONTRACT_TIME.

A contractor who establishes his right to recover under the contract is entitled to interest on the claim.

[Ed. Note.-For other cases, see Municipal Corporations, Cent, Dig. $8 903, 910; Dec. Dig. 8 374.*]

Appeal from Trial Term, New York County. Action by the R. G. Packard Company against the City of New York. Judgment for plaintiff, and from the judgment and an order denying its motion for a new trial, defendant appeals. Judgment and order affirmed.

The following is the opinion of Whitney, J., referred to by the court: Upon the question submitted to the jury found for defendant. Hence the exceptions to the charge, whose discussion takes up so large a part of defendant's brief, are not material now. The exceptions to be considered on this motion are those taken to rulings upon motions to direct a verdict. Defendant's first and most confident contention is that it is entitled to a reduction of the verdict to $2,307.50. The action is brought upon a contract for excavation under water along the East River front, for purposes of a new bulkhead. The price is $9.35 per cubic yard. The amount actually paid before suit is $92,882.90. The estimated expense at the time of making the contract was $90,657.60.

[1] Defendant claims that the latter sum, plus 5 per cent, thereof, is the extreme limit of plaintiff's possible recovery. Its counsel says: “In order to make the contract definite and certain, certain clauses were inserted as follows: ‘Art. 2. The engineer's estimate of the quantities of material to be excavated and removed is as follows: Total of all material 9,696 cubic yards, neat measurement.' This clause is followed by what is commonly known as the 5 per cent. clause, which reads as follows: 'No payment shall be allowed for any work in excess of the amount set forth, plus five (5) per cent. thereof.'"

If the specifications read as here stated, defendant's position would be impregnable; but the clause last quoted does not immediately follow the other, There is a long paragraph between headed “Note.” This states that the 9,696 cubic yards estimate “is approximate only, and forins no part of this contract"; that bidders must "judge for themselves of the amount and other circumstances affecting the cost of the work"; that said estimated amount is not to be used for measurement or payment; that, on the contrary, all material is to be measured in accordance with certain data, part of wbich will not be obtainable until after completion of the work. In paragraph F of the contract to which the specifications are attached there is provision made for "additional work” that may be “done or furnished under a written order from the commissioner" for a price that "shall not exceed five (5) per *For other cases see same topic & Ş NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

cent. of the contract price or total cost of the work and materials." I think that the 5 per cent. clause in the specifications refers to the "additional work" that might be done under the contract, and that the “total cost of the work and materials” upon which the 5 per cent. is to be computed is the cost by actual measurement, not, as defendant now contends, a provisionally estimated cost, which “is not to be used for measurement or payment." The 5 per cent. clause relates to extra work. Plaintiff claims nothing for extra work.

[2] Defendant contends that this construction makes the contract illegal because by the last clause of section 1541 of the Greater New York Charter (Laws 1901, c. 466) no expense can be incurred in excess of a previous appropriation; but this clause does not apply to contracts at a fixed rate per yard for work whose exact expense is necessarily as yet indeterminable. Such contracts are provided for in section 149, which requires them to be indorsed by the comptroller with a certificate that there is a balance of appropriation "sufficient to pay the estimated expenses of executing such contract, as certified by the officer making the same.” The cases relied upon by defendant relate to claims for extra work, and their resemblance to the present case is superficial only. Matter of Morris & Cumings Dredging Co., 116 App. Div. 257, 101 N. Y. Supp. 726; Donlon Con, Co. v, City, 64 Misc. Rep. 471, 119 N. Y. Supp. 617; Dady v. City, 65 Misc. Rep. 382, 121 N. Y. Supp. 860.

[3] Passing now to the main question in the case, it is first necessary to consider the true construction of the specifications (which were drawn by an assistant engineer in the Dock Department) as to the amount to be excavated. The inner line of the new bulkhead for which the excavation was to be made was to be 9 feet inshore from the established bulkhead line. Its base was to be 15 feet below mean low-water mark. In order to be sure that enough room should be blasted out, the contractor was to be paid for whatever he might excavate as far as the 10-foot line inshore and the 16-foot line beneath; that is, an extra foot in each direction. The material to be ex. cavated was to be solid ledge rock below, with generally an upper stratum of loose rock. The same formation generally extended for some distance inshore from the 10-foot line. Hence it was necessary to provide in the contract for getting out and carrying away the loose rock immediately adjacent to that line, for, if the loose rock should slide into the excavation while the work was going on, it would increase the amount which would have to be dug up and carried away; while, if it should slide into the excavation after the work had been finished and accepted, then the city would have to hire the contractor or somebody else to excavate again. This extra expense was therefore bound to be provided for, either as so much more cubic yardage, or by an increase in the compensation demanded by the bidders for the contract. Thus arose the provision for the 45-degree line. Forty-five degrees is the angle of safety. Hence is an imaginary 45-degree line be taken at each given point where the loose rock overlies the ledge rock on the inner line of the excavation, and running upwards and inshore, and if the loose rock be removed from above that line, the parties are fully protected.

Unfortunately, according to the undisputed evidence here, the location of the springing point cannot be accurately ascertained by soundings taken before the work commences. The so-called disc soundings show only the top of the loose rock. The so-called rod soundings are really made not with a rod, but with a pipe. When the loose stones are at all large, the pipe manifestly cannot go down very far through them, except with extraordinary luck. Hence an accurate cross-section cannot be taken at that time by soundings which can be relied upon as furnishing even approximately the location of the proper springing point of this forty-five degree line. The main specification as to the westerly limit of the excavation is as follows: "The westerly limit shall be a line nine (9) feet inshore from and parallel with established bulkhead line.

Payment shall not be made for material excavated at a distance inshore or westerly of the above described limits greater than one foot." Now, to provide against the loose rock, we have this exception appended to the extract which I have just quoted: “Except where known loose rock is shown in the cross-sections above the top grade of the indicated rock,

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