Del Balso Construction Corp. v. City of New York , 1937 N.Y. App. Div. LEXIS 5765 ( 1937 )

Dore, J.

(dissenting). The provisions of article XLIII of the contract in issue are materially and essentially different from the clause in the contract construed in Litchfield Const. Co. v. City of New York (244 N. Y. 251) and radically distinguish that case from the case at bar. The facts, too, were materially different as the work omitted in that case was a portion of the railroad that was to be constructed.

Some meaning must be given to the additional terms inserted in the clause permitting the elimination of items where necessary for the public interest. The city does not claim the right was unlimited and unrestricted. This decision must be limited to the facts in this case, and here there is actually involved not forty per cent but ten per cent of the work classified as incidental, and this ten per cent is calculated on the amount of the bid for the items in question which on the evidence adduced appears to have been inflated beyond reasonable cost. The contract provided that the contractor would receive $509,000 for underpinning the two warehouse buildings. According to plaintiff’s own witness, the cost of underpinning one of these — the large warehouse — would have been only $207,423, showing a profit included in that item of about $298,000 on a total bid of $505,000 for underpinning of this particular building. Buying the entire property outright and demolishing the buildings indicated a saving to the city of $384,000.

The facts here show that there were reasonable grounds for eliminating the items and not mere whim and caprice or fraud. No change in the general character of the contract was made; the main purpose and essential identity of the thing contracted for were preserved.. Under the terms of the contract and all the facts and circumstances disclosed the change from underpinning to demolition was permissible without making the city hable for the anticipated profits on the items.

Accordingly I dissent and vote to affirm the judgment in defendant’s favor.

Judgment, so far as appealed from, reversed, the action severed, and a new trial ordered as to the second cause of action, with costs to the appellant to abide the event. •'