Joseph F. Egan, Inc. v. City of New York ( 1966 )

Chief Judge Desmond and Scileppi, J. (concurring in result).

We agree that the matter should be remitted to the Appellate Division to permit that court to pass on the facts. However, with respect to the extra engineering services, it appears that Farrell, who was virtually in charge of the operations for the city, had apparent authority to direct the plaintiff to employ an engineer when it became necessary to revise the construction plans. Obviously, Farrell did this on behalf of the respondent to avoid unnecessary delay occasioned by the city’s failure to furnish adequate plans in the first place. This was not ‘ ‘ extra work ” which, under the terms of the contract, would require written approval of the commissioner, but was an additional oral contract separate and independent from the prime contract and relied upon and fully performed by the plaintiff.

Judges Fitld, Van Voorhis, Burke and Bergan concur with Judge Keating ; Chief Judge Desmond and Judge Scileppi concur in result in a separate memorandum.

Judgment reversed, with costs, and ease remitted to the Appellate Division for a determination of the questions of fact (CPLR 5613).