Opinion
Argued December 16, 1889
Decided January 14, 1890
James A. Deering for appellant. D.J. Dean for respondent.
The release was a good answer to the second cause of action alleged in the complaint, founded on the delay on the part of the city to remove the obstructions in the street, thereby preventing the plaintiff from proceeding with the performance of the contract. ( Seymour v. Minturn, 17 John. 170; Gray v. Barton, 55 N.Y. 68; Coulter v. Board of Education, 63 id. 366; Simson v. Brown, 68 id. 355.)
The claim to recover the sum retained by the city for inspectors' fees for the 375 days beyond the 320 days allowed by the contract for the completion of the work, is based on the ground that performance was prevented by the neglect of the city to remove the obstructions from the street. The plaintiff requested the court to submit the question to the jury, which request was refused, and the plaintiff excepted. There was no error in this ruling. The contract provides that in computing the time exceeding the 320 days, the time "during which the work of completing the contract is delayed in consequence of any act or omission of the party of the first part (all of which shall be determined by the commissioner of public works, who shall certify the same in writing), and also Sundays and holidays on which no work is done, and days on which the prosecution of the work is suspended by the said commissioner, shall be excluded." There was no determination by the commissioner of public works applied for or made under this provision. The inspectors' fees were a proper charge under another provision of the contract, unless, according, to the provision quoted, the delay was occasioned by the act or omission of the city. But by the terms of this clause it was a condition precedent to any right of the plaintiff, to be relieved from the allowance of inspectors' fees, that the matter should have been submitted to, and determined by the commissioner of public works, and this was not done. It was a lawful provision, and is an answer to the claim in the first count of the complaint. If the commissioner had neglected or refused to act when called upon to do so, a different question would be presented. ( Smith v. Brady, 17 N.Y. 176; Bowery National Bank v. Mayor, etc., 63 id. 336; Nolan v. Whitney, 88 id. 648.)
The point that it was not proved that the inspector, Fitzgerald, who was paid for 304 days' inspection, had ever performed the work of inspection, is not presented by the case, as the deposition of Fitzgerald, which was read on the trial, is not printed, and this evidence may have supplied the proof which is now absent.
We find no error in the judgment, and it should, therefore, be affirmed.
All concur.
Judgment affirmed.