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First Department, November, 1911.

[Vol. 146. provision, added by the said amendment, can have no application to the case of chattels which from their nature remain such, though attached to a building, as these ranges were attached, for the reason that the purchaser of the real property would get no title to them, even as against his vendor. The said provision was doubtless intended to apply to the class of cases in which the intention of the party attaching the chattel determines whether it retains its character as such; e. g., Fitzgibbons Boiler Co. v. Manhasset Realty Corp. (198 N. Y. 517). We cannot hold that this case falls within that class without overruling Cosgrove v. Troescher (supra).

LAUGHLIN, J., concurred.

Judgment affirmed, with costs.

SANDY ADAMS and EUGENIO CLEMENTE, Respondents, l'. MINNIE

A. INDELLI and JAMES CONFORTI, Appellants.

First Department, November 3, 1911.

Contract — building contract — when plans are part thereof - extra

work – question for jury - charge.

A contract whereby plaintiffs agreed with defendants to do all the exca

vating on a plot of ground in New York city, two hundred feet by one hundred and ten feet, to the depth of eight and one-half feet below the curb of the entire plot, “according to the plans of the owner of the said premises subsequently to be shown," is not to be taken alone in

determining the work which was required to be done. The reference to the plans contained in the contract inade them part of it,

not merely for the purpose of determining whether part of the rock on the plot within eight and one-half feet of the surface was to be left unexcavated, but also to show the incidental work to be performed by

the plaintiffs. The contract should be construed, not as defining with precision the work

to be done, but as descriptive merely. Where the plans called for an excavation on a slant averaging eight and

one-half feet in depth, the depth given in the contract should be regarded

as an estimate only to be read with the plans. The plaintiffs cannot recover for all excavating over eight and one-half

feet in depth as for extra work if they saw the plans before proceeding with the contract and made no objections thereto.

App. Div.) First Departinent, November, 1911.
They may, however, recover as extra work for excavating not required

by the contract or plans if the jury finds it was authorized by the defendants. Where in an action to recover as for extra work, not only for such excavating, but also for the excavating of areaways, boiler and elevator pits and trenches shown on the plans, but not especially referred to in the contract, it appears that plaintiffs knew that the excavation was to be for the foundation of a house, and the extra work claimed is such as is usually incident to excavations for foundations, and there is a conflict of evidence as to whether plaintiffs saw the plans, and as to an alleged agreement by defendants to pay for extra work at an increased rate, it is error to charge the jury, as a matter of law, that plaintiffs were entitled to recover for all these items as extra work. It is also error to refuse to charge that, if the plans were delivered to

plaintiffs before they started the work and if the areaways, etc., were shown thereon, they can only recover for it at the rate provided in the contract. Scott and MILLER, JJ., dissented.

APPEAL by the defendants, Minnie A. Indelli and another, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of New York on the 19th day of October, 1910, upon the verdict of a jury, and also from an order entered in said clerk's office on the 24th day of October, 1910, denying the defendants' motion for a new trial made upon the minutes.

Charles G. F. Wahle, for the appellants.

Mortimer M. Menken, for the respondents. LAUGHLIN, J.:

The plaintiffs were copartners engaged in the business of excavating for foundations in the city of New York, and the defendants were general contractors and had taken a contract from the owners of premises on Longwood avenue, Kelly and Beck streets, in the borough of the Bronx, for the excavation for and the construction of a foundation for a building to be erected thereon. On the 24th day of December, 1908, the plaintiffs entered into a contract in writing with the defendants, by which they evidently intended to sublet to plaintiffs the excavation work. Plaintiffs, however, contend that only part of the excavation work was included in their contract. The part of the contract most material to a decision of the

First Department, November, 1911.

(VOL. 146. questions presented by the appeal is the 1st clause, which is as follows:

“That the said parties of the second part herein hereby agree to do all the excavating and blasting of all the rock and stone on the plot 200'x110', said premises being 200 feet on the south side of Longwood avenue, and being 110 on Kelly street, and 110 feet on Beck street, in the Borough of Bronx, city of New York, to the depth of 8 feet 6 inches below the curb, of the entire plot, according to the plans of the owner of the said premises, subsequently to be shown.”

The plans of the owner, to which the contractor refers, provided not only for the excavation of the entire plot of the dimensions stated in the contract, and to the depth therein stated, but to a depth in the main of about six inches more, and further for excavation work connected therewith or necessary for the construction of the foundation for the building, as follows: First, for an areaway on Longwood avenue two hundred feet in length by seven feet in width to the depth of nine feet; second, an areaway on Kelly street seven feet in width, thirty-seven feet in length and nine feet in depth; third, an areaway on Beck street of the same dimensions; fourth, two boiler pits thirty-three feet in length by eighteen feet in width and five feet deep, and of a depth from the highest point of the curb adjacent to the premises, one, eighteen feet and ten inches, and the other, fourteen feet ten and three-eighths inches; fifth, two elevator pits six by seven feet, four feet deeper than cellar bot tom; and sixth, for certain trenches for foundation walls.

The plaintiffs also excavated two feet beyond the rear line of the premises described in the contract for the width of two hundred feet and to the depth of ten feet. This, however, was not required by the plans, and the question as to whether it was authorized by the defendants was properly submitted to the jury, and we find no error with respect to this item.

The action is brought to recover a balance claimed to be due on the contract, and for the excavation work below the depth of eight and a half feet and beyond the precise description given in the contract as for extra work. The court ruled as matter of law that this was all extra work, and that the plaintiffs were entitled to recover as compensation therefor the

App. Div.] First Department, November, 1911. reasonable value of doing the work, which was not governed by the contract price. It was claimed on the part of the plaintiffs, and evidence was given tending to support that view, that they did not see the plans until about the middle of May, 1909, when they had substantially finished the work of excavating the plot of ground of the dimensions specified in the contract to the depth thereby required, and that it was much more expensive to them to go back and excavate these areaways and to the greater depth than if they had known that it was required at the outset when they could have done it in connection with the main excavation, and that then it was agreed on the part of the defendants that they should do the other excavating as extra work and be paid therefor accordingly. On the part of the defendants this evidence was controverted, and evidence was offered tending to show that before or at the time the plaintiffs commenced the work, which the evidence of the plaintiffs indicates was on the seventh and the evidence of the defendants tends to show was on or about the 3d day of January, 1909, a copy of the plans, to which the contract refers, showing that all of this work with the exception of a strip two feet in width in the rear of the plot was required, was delivered to one of the plaintiffs and by him delivered to their surveyor; that the original plans were in the toolhouse and accessible to plaintiffs during all of the time, and that plaintiffs proceeded with the work in their own way and without any interference on the part of the defendants, and that considerable of the work, for which a recovery has been had on the theory that it was extra work, was done by the plaintiffs long prior to the middle of May, 1909, at which time they claimed to have first seen the plans, and that they accepted and received pay therefor, without protest, on the basis of the contract price and without making any claim that it was not included in their contract. The evidence also shows that the plaintiffs knew, from their experience in excavating for building foundations, that it was customary for the plans to include excavations for boiler pits and areaways, and that such work is done in connection with the main excavation work; but the court excluded evidence that it was customary for the excavators to have the working

First Department, November, 1911.

[Vol. 146. plans, on the ground that custom was not pleaded, and excluded a proposed amendment to the answer designed to plead custom upon the ground that it presented a new issue.

The court, in submitting the case to the jury, instructed them as matter of law that plaintiffs were entitled to recover for all of these items as extra work, with the exception of the item for excavating two feet in the rear of the premises, which was left to the jury as a question of fact, as already stated. Counsel for the defendants duly excepted to the charge in this regard, and requested the court to instruct the jury as follows: “I ask your Honor to charge the jury that if the jury believe that the plans called for by the contract were in fact delivered to the plaintiffs early in January, 1909, and that the work claimed by the plaintiffs as extra work was in fact shown to be called for by the plans, the plaintiffs can recover only for the work actually performed by them at the rate provided for in the contract, and the jury can award the plaintiffs only the balance due them from the defendants at that rate."

This request was declined, and an exception was duly taken. Counsel for the defendants also duly requested the court to instruct the jury on the same point as follows: “If the jury find that the plans called for by the contract were in fact delivered to plaintiffs early in January, 1909, and that the work claimed by plaintiffs as extra work was in fact shown and called for by the plans, plaintiffs can only recover for the work actually performed by them at the rate of $1.50 per cubic yard, and the jury can award plaintiffs only the balance due them from defendants at that rate." Which was likewise refused and an exception was duly taken.

We are of opinion that the court erred in ruling as matter of law that the contract was to be taken alone, and the plans excluded, in determining the work that the plaintiffs were required to do, and also erred in refusing to instruct the jury as requested in the requests quoted. This contract should receive a reasonable interpretation. It is manifest that, in letting rock excavation work for a foundation, the owner or contractor letting the work would ordinarily in the interests of economy provide for doing it all at the same time. The plaintiff's knew the purpose for which this excavation was to be

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