Montgomery v. Mayor, Aldermen & Commonalty of New York , 151 N.Y. 249 ( 1896 )

By the terms of the contract made between the plaintiffs and the city, which provided for the construction of a sewer, the commissioners of the park department were authorized to appoint an inspector of the materials furnished and the work done, "and to see that the same corresponded with said specifications and plans." The plaintiffs further agreed in the contract that the certificate of the inspector that the work had been faithfully performed in accordance with the requirements of the contract, approved by the engineer of the commissioners, should be a condition precedent to their right of payment. The effect of these provisions was to vest in the inspector a right or capacity to pass upon the performance of the work, which came very near to constituting him, as between the parties, the judge as to that matter. The plaintiffs' cause of action for damages is based upon an increased cost of the work, alleged to be due to the action of the inspector in delaying the work, through his rejection of materials which were in accordance with the plans and specifications. The plaintiffs' evidence shows that the inspector frequently did reject the pipe and cement intended to be used, and, possibly enough, that he was very arbitrary in doing so. The plaintiffs were not otherwise prevented from going on with the work than by the objections which were made by the inspector to the suitableness of the materials. It may be true that his objections were not sound, and perhaps his superior officers should have listened more indulgently to the plaintiffs' complaint concerning the inspector's action. But, assuming the truth of all this, we fail to see how any cause of action has arisen against the city for these damages. It would be very extraordinary, and we think it would constitute an unsafe precedent in future cases, if contractors with the city under these contracts could maintain actions against it for damages, where the execution of the work contracted for was delayed, upon the ground that the delay was caused by the officers who, by the force of the contract, were invested with the power of supervision. This is not at all like the Mulholland case (113 N.Y. 631), where, through the action of the city's engineers, more work was required of the plaintiff that was called for by the contract, by reason of a deviation from the original plan, which caused additional and useless labor. If the inspector had the power under this contract to reject materials which he thought unfit to be used, the plaintiffs certainly cannot complain; for such was the agreement of the parties. For all that the case discloses, there was nothing to prevent the plaintiffs going on with the work and relying upon their ability to prove, if upon completion the city should refuse to make payment, that the work and materials were up to the requirements of their contract. But the plaintiffs, in effect, acquiesced in the inspector's rejection of materials; for they went on with the work after procuring other materials; or, at least, they must be assumed to have done so. We do not think they can be heard to complain that the city has been made liable to them in damages, upon the theory that a delay occurred in the completion of the work, whereby the cost was increased to them; when the delay was occasioned in the exercise of a power of supervision which the contract warranted and which the plaintiffs seem to have recognized.

We, therefore, think that the complaint was properly dismissed as to this cause of action, and that the judgment appealed from should be affirmed, with costs.

All concur.

Judgment affirmed.