Uvalde Asphalt Paving Co. v. City of New York

The action is brought against the city to recover for certain work done on a sidewalk, and the question is whether sidewalks are within the maintenance clause of the city contracts requiring the maintenance of the “. said pavements.” The clause in question provides that the contractor will furnish all labor and materials and “ in strict accordance with the specifications, * * * regulate, grade and pave with iron slag block, wood and granite block pavement * * * the streets mentioned, set and re-set curbstones, etc., as may be necessary, all' as herein provided, and maintain said pavements, etc., for the period of one year for slag and granite and five years for wood.” The specifications and proposals for estimate are specifically made part of the contract, and these disclose that the improvement contemplated included iron slag block pavement, granite block pavement, wood block pavement, standard and special curb, *453cement sidewalks, some iron fence and an amount of sod furnished and laid. It is entirely evident that all this is not included in the words of the above clause to “ pave with iron slag block, wood block and granite block pavement.” Such work as is not included in such words must be included in the other parts of the contractor’s obligation. The words “ said pavements ” in the maintenance part of the clause clearly refer to that part of the work included in the above quoted words requiring the contractor to pave with three specified kinds of pavement, and as said clause cannot include work other than paving with said three kinds of pavement it seems very clear no other work was covered by the maintenance clause, and the sidewalks are not included therein.

Reference to other parts of the contract specifications and proposal strongly accentuates this view. In the proposal for estimates, opposite the estimated amounts of iron slag block and granite block pavements, are written the words *1 with one year maintenance ” and opposite wood block pavement the words “ with fivé years maintenance,” while no such words are opposite the amount of cement sidewalk, or sod to be furnished and laid, or any of the other items of work specified. This is a very significant indication of the intention. and understanding of the parties. So the wording of clause 11 of the proposal makes strongly in the same direction.

Judgment should be reversed, with costs, and judgment entered for plaintiff for full amount, with costs.

G-uy, J., concurs; Shearn, J., dissenting, without opinion.

Judgment reversed, with costs.