Opinion
November, 1935.
In an action brought to recover damages alleged to have been caused by the delay of the city of New York, in completing its contract with plaintiff to construct and deliver a certain pier, order granting the motion of the city to bring in the appellants as parties defendant, under section 193, subdivision 2, of the Civil Practice Act, reversed upon the law, with ten dollars costs and disbursements, and motion denied, with ten dollars costs. In our opinion, the contract between the city and the appellants for the work in question contained no clause or provision by which the appellants agreed to indemnify the city for any damages caused by delay in the appellants' completion of their contract. The contract does provide for liquidated damages for such delay and the city has asserted its claim to such liquidated damages and has deducted the amount thereof from the amounts due to the appellants under the contract. The city is, therefore, precluded from any recovery from the appellants of actual damages. ( General Supply Const. Co. v. Goelet, 241 N.Y. 28.) Lazansky, P.J., Young, Hagarty, Carswell and Davis, JJ., concur.