"Resolved, That the Counsel to the Corporation be requested to furnish to the Board his opinion upon the following points:

"1st. Whether the provisions of the contract for the construction of the Harlem River Bridge, that the contractors, for $2,055,000, will fully complete the bridge in strict conformity to the specifications, require the Commissioners to pay more than $2,055,000 by reason of the construction of Pier 2, in accordance with the terms of the contract?

"2d. Do the specifications which require the piers to be from the rock foundation, and the piers to be founded upon the solid rock, and such means as the Engineer shall direct to be used to lay the rock bare, and the other clauses as to foundations, oblige the contractors to found Pier 2 upon the solid rock for the $2,055,000?

"3d. Does the clause, that all excavation for Pier No. 2 is to be classified as dredging, the price for which is applicable only to the net lines of the coffer-dam required and to the depth shown on the exhibited plans as depth of foundation of Pier No. 2. Excavations will be made to such slopes as may be directed by the Engineer,' modify the requirements of the specification as to foundations?

"4th. Does the second article of the contract on reference to Schedule 'C,' of prices to govern, increase or diminution of work, in case of increase or decrease by change of plan by the Commissioners, with the items:

Dredging for Pier No. 2....

For foundations of Pier No. 2, if compressed air is used, etc., below said line...

$4.00

45 00

-entitle the contractors to claim $45 per cubic yard below the line shown on Plan 2 if compressed air is used, in order to found said pier on the solid rock, without any alteration or change of plans by the Commissioners?

"5th. Are the prices in Schedule 'C' only applicable where the plans are changed, and not to the case where it was necessary to go below the line to reach the solid rock and to use compressed air to carry out the plan without change?"

I understand the various questions thus offered to me for solution to express in different forms but one inquiry, namely, were the contractors with the Harlem River Bridge Commissioners bound, under the terms of their contract, to construct Pier No. 2 as the same now stands, without any charge therefor in addition to the contract price of $2,055,000?

The contract certainly might have been made more explicit upon so important a point, instead of leaving it to be worked out from the various papers which make up the plans, agreement, specifications and schedule that together constitute, as a matter of law, the contract under which the work is to be done. A thorough comprehension of the theory upon which the construction of this bridge was contracted for is necessary to the solution of this question. The contract is based upon certain plans showing the character and dimensions of the bridge to be constructed, including, among other details, the depth of Pier No. 2, which was fixed at twenty-two feet below mean high water. The data, from which an estimate of quantities could be made, were before the contractors, and they were expected by the Commissioners to bid a price in a lump sum for a bridge of exactly the character, dimensions and cubical contents described in and measured by

the plans which had been prepared; appropriate stipulations being inserted in the contract for such changes, modifications and additions which they were then aware would have to be made, or which might be afterwards found to be desirable. As any change in the plan would necessarily involve some change in quantities and so disturb the proper relation of the price to the work, a schedule of fixed rates was made a part of the scheme, according to which the price for the bridge was to be increased or diminished by a sum to be ascertained by an application of the appropriate schedule rates to the measurement of increased or decreased quantities, as the case might be.

An examination of the plans and specifications seems to sustain the correctness of this view. The first section of the contract, while it requires that the contractors, in consideration of the sum of $2,055,000, shall furnish and provide all necessary materials and labor for the construction and completion of, and that they shall and will construct, finish and complete, ready for use and operation, the entire bridge to be erected over the Harlem River, at One Hundred and Eighty-first street, in the City of New York, also provides that they shall furnish all of said materials and perform all of said labor and fully construct, finish and complete said bridge in strict conformity to the preliminary plans and specifications annexed there

to.

In the second section it is provided that "the Commissioners may at any time vary, alter, modify or amend the said preliminary plans and specifications, and in case, by reason of any such change, the quantity of any kind or class of work shall be increased beyond the amount thereof required by the said preliminary plans and specifications, then, and in each such case, the contractors shall receive payment for such increased quantity at the rate

set forth in the schedule hereto annexed, marked "C," in addition to the said sum of $2,055,000, and in case, by reason of any such change, the quantity of any kind or class of work shall be diminished from the amount thereof required by the said plans and specifications, then, and in every such case, the said sum of $2,055,000 shall be diminished according to the rates set forth in said last mentioned schedule. In case there shall be, by reason of any such change, an increase or decrease in quantity of any kind or class of work not specified in said Schedule "C," then there shall be added to or deducted from said sum of $2,055,000, as the case may be, such sum as shall be certified by the engineer as the cost of such increase or decrease in quantity. In every case the increase or decrease in quantity of any kind or class of work shall be conclusively fixed by the final estimate of the engineer to be certified to by the Commissioners."

Reading these two sections together, the necessary deduction must be that the parties to the contract intended that the bridge over the Harlem River, at One Hundred and Eighty-first street, should be constructed for the sum of $2,055,000, strictly upon the basis of the plans and specifications and the actual quantities called for by the plans, and that where necessity or further study of the subject required or suggested a change in or amendment of the preliminary plans and specifications, the Commissioners should have the power to do so, and the contractors should then receive additional compensation according to a fixed schedule of charges, where, by reason of such change, the quantity of any kind or class of work should be increased "beyond the amount thereof required by the said preliminary plans and specifications.'

As I have already stated, the plans showed a depth for Pier 2 of twenty-two feet below mean high water, and the

quantities which form the basis of the bid, and upon which was predicated the contract price of $2,055,000, were necessarily based upon this measurement. The contract, when executed, was for a bridge at the specified price with a pier of that depth, neither more nor less. It was, however, well-known to the contracting parties that the foundation for this pier, as a matter of fact, could not be established at this depth, and that it would be necessary to amend the plans, and consequently increase the quantities to find a stable resting place for the structure. The reason for this is expressed in the communication to your Board of Mr. Macolm W. Niven, Secretary to the Commissioners, which appears in your minutes of the 7th ultimo. He says, "when the contract was made the depth to which it would be necessary to sink Pier 2 had not been determined, although it was known that it would exceed twenty-two feet, nor had it then been decided whether the additional depth would be better reached by the process of compressed air or by some other method. It was therefore left an open question to be decided by the engineers, and the most convenient method of providing for it in the contract was to show a depth of twenty-two feet only on the plans, leaving the additional depth to come under the operation of the 7th (should be 2d) clause of the contract and of Schedule "C," which provided that any additional depth should be paid for at $45 per cubic yard of displacement, timber and masonry, if compressed air should be used, and at a cost of ten per cent. if any other process should be used.”

It appears from the same communication that subsequent to the execution of the contract the engineers of the Commission determined that the caisson with compressed air was the safest and most certain way of founding said Pier 2, and that method was accordingly adopted