McGovern v. . City of New York , 235 N.Y. 275 ( 1923 )

The plaintiffs are contractors engaged in the construction of the Lexington avenue subway in the city of New York. They sue for a balance alleged to be due upon the completion of the work. Six causes of action are stated in the complaint. At the trial the plaintiffs succeeded upon all. The Appellate Division cut out the recovery upon the first cause of action. This was for underpinning the stoops along the route. Elimination of that item reduced the judgment from $330,381.28 to $131,485.90. In other respects the verdict was approved. There are cross-appeals in this court.

We think the plaintiffs' recovery upon the first cause of action was excessive, but that the Appellate Division erred in denying it altogether. The specifications provide that the contractors shall be paid for underpinning buildings "per lineal front foot of building underpinned." The plaintiffs ask compensation for underpinning sixty-seven stoops. In thirty-eight instances, they underpinned at the same time the front walls of the buildings to which the stoops were appurtenant. We find no basis for their claim that in addition to the payment which has been made to them for the walls, they should have payment for the stoops. In twenty-nine instances, they underpinned stoops so situated that it was unnecessary to underpin the walls. We think they are entitled in such circumstances to treat the underpinning of a stoop as the underpinning of a building, and to receive payment accordingly. Even where these conditions existed, their claim, however, is excessive. They were paid by the verdict of the jury for every foot of the perimeter. They should have been paid per lineal front foot, the front of the stoop for this purpose being considered to be the front of the building. A new trial of the first cause of action will be necessary to ascertain how much the verdict should be when figured upon that basis.

We think the second, third, fourth and fifth causes of action were properly disposed of at the Appellate Division. The recovery upon the sixth cause of action is in our judgment excessive to the extent of $3,594.90, for concrete laid by the plaintiffs beyond the ordered line for excavation.

The question of the application of section 37 of the Rapid Transit Act (L. 1909, ch. 498) is not before us, since the defendant has not given notice of its intention to review the order of the Appellate Division sustaining the demurrer to its defense. (Osborn v. Cardeza, 208 N.Y. 131, 136.)

The judgment of the Appellate Division and that of the Trial Term should be modified by granting a new trial of the first cause of action, with costs to abide event, and by reducing the judgment upon the other causes of action by the sum of $3,594.90, and as so modified the judgment upon said causes of action should be affirmed, without costs to either party.

HISCOCK, Ch. J., HOGAN, CARDOZO, POUND, McLAUGHLIN, CRANE and ANDREWS, JJ., concur.

Judgment accordingly.