# Ryan v. City of New York

> Appellate Division of the Supreme Court of the State of New York · July 13, 1917 · 179 A.D. 181

URL: https://www.frixlaw.com/law-library/cases/5246929

## Case

- **Full name:** Patrick Ryan v. The City of New York
- **Court:** Appellate Division of the Supreme Court of the State of New York
- **Decided:** July 13, 1917
- **Citations:** 179 A.D. 181; 166 N.Y.S. 575; 1917 N.Y. App. Div. LEXIS 7415
- **Precedential status:** Published
- **Opinion:** Concurrence by Clarke
- **Judges:** Clarke, Shearn
- **Cited by:** 4 later opinions in the Frix Law Library

## Citator (automated)

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## Opinion text

Clarke, P. J.:
I concur in so much of the opinion of Mr. Justice Shearn as affirms the dismissal by the trial court of the various causes of action for damages. In regard to the damages for delay in the year 1906, also dismissed by the trial court, but as to which dismissal Mr. Justice Shearn advises reversal, I dissent and am of the opinion that this cause of action was also properly dismissed. Under clause “ EE ” of the contract it is provided: “ This contract is made and entered into with the express understanding and agreement that the work shall progress and be carried on in such places and in such parts as may be directed and required by the borough president, by and through the direction of the engineer.” The direction to suspend work was not to suspend work upon the whole contract, but upon a small specific portion thereof for special reasons and was in my opinion clearly within the meaning and intent of the clause quoted and within the power of direction of the engineer. Even if the direction be considered the exercise of the right of suspending the work under clause “ K,” I do not agree with Mr. Justice Shearn that such direction must have come from the borough president or the commissioner of public works because paragraph “A” provides: “ Wherever the term ‘ President ’ is used, or a pronoun in its place, it shall refer to and mean the President of the Borough of Manhattan or his authorized representative,” and that such representative is only the commissioner of public works. I am of the opinion that in respect to the *197 details of carrying out the provisions of this contract the engineer was the authorized representative of the borough president. The contract gave the right to the city through the borough president or its duly authorized representative to suspend the whole or any part of the work. The direction was given in writing under date of May 3,- 1906, by the engineer. On October 30, 1906, a letter was sent by the same engineer • to the contractors authorizing and directing them to continue the work. I think that the proof shows that the borough president was aware of this matter on May tenth and it is not a strained inference to hold that the action of the engineer was authorized and directed by him. There was no protest from the contractor, simply a request for the payment of additional moneys out of the retained percentages.
I also dissent from so much of the opinion of Mr. Justice Shearn as reverses the finding of the jury in favor of the city upon the item for “ sheeting ” and directs a new trial. It must be recalled that there was a final certificate in this case. There was no question of fraud or bad faith in the issuance of this certificate. The court left to the jury the question whether there was a mistake therein and upon that issue the jury found a verdict for the city upon disputed facts. It does not seem to me that this verdict is against the evidence or the weight thereof. In my opinion, therefore, the judgment appealed from should be affirmed, with costs to the respondent.
Dowling, J., concurred.
Judgment affirmed as to items of 1904 delay, 1907-8 delay, electric wiring delay, cement change and interest on progress payments; and reversed as to item of 1906 delay and sheeting charges, and new trial ordered with respect to said items, with costs to appellant to abide event. Order to be settled on notice.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/5246929. Public record. Not legal advice.