First Department, July, 1921.

[Vol. 197 in the interests of the Board. The completion of the construction work has been relet on three occasions owing to default in the case of two, and

"WHEREAS, the interests of the Board of Education demand that the work of construction and completion of the Evander Childs High School be carried forward without further delay, therefore be it

"Resolved, that the work called for in the above mentioned contraction with the Wells & Newton Co. of New York be continued under the terms of the present contract until completion, and

"Resolved, that the Board of Education acknowledges that by reason of such continuation of the performance of the contract, the contractors will have a claim for extra expense, the amount of which is not definable at this time, the said extra expense arising out of delays on the part of other contractors and the enhanced prices of labor and materials due to present day extraordinary conditions; and

Resolved, that the Board of Education, upon the completion of the work required to be performed under the existing contract, will entertain a claim in detail and settle the same by either one of the following methods:

"1. By agreement,

"2. By arbitration, or

"3. By judicial decision on an agreed state of facts, and

Resolved, that the work called for under the contract be proceeded with without delay under the direction of the Superintendent of School Buildings."

Thereupon the relator resumed work, and diligently prosecuted the same to completion and the same was fully completed in or about the month of May, 1920. Because of said faults and defaults of the said city and board it was impossible to sooner complete the same. It was in reliance on said resolution and because thereof, and solely because thereof, that the relator resumed and completed said work.

Upon completion of the work the contractor submitted a claim showing the reasonable value of the work as done as $136,913.93, being the actual cost plus ten per cent profit. Supporting affidavits and schedules were filed with the board of education, which requested from relator and received

App. Div. 407]

First Department, July, 1921.

directly from trade and contractors' associations further affidavits and statements in support of the claim.

On July 12, 1920, the board of education issued its certificate as follows:

"On behalf of the Board of Education, School District of the City of New York, it is hereby certified that the contract of Wells & Newton Co. of N. Y. For Item 1, Installing Heating and Ventilating Apparatus Work on Public School Evander Childs H. S. situated at East 184 Street and Creston Avenue Borough of The Bronx dated the 25 day of October 1915 has been fully performed and the work finished, complete and perfect in every respect and to the satisfaction of said Board, and accepted July 12, 1920.

"It is further certified that having given due consideration to the time limit of the contract an allowance of 1128 days is made for delays beyond the control of the contractor, as provided in clause J of the contract; also that the last payment under said contract is now due, and that all damages and allowances which should be paid or made by the contractor have been deducted from the said payment, leaving the sum of Nine thousand and ninety seven $......Dollars due thereon. Dated, NEW YORK, July 12, 1920.

"BOARD OF EDUCATION "School District of City of New York By JOHN A. FERGUSON, Chm. "Acting Chairman, Committee on

"Buildings & Sites."

Subjoined to this certificate and a part thereof is a certificate by the relator as follows:

Certificate of Relator that there is no claim or demand for extra work or otherwise made with Board of Education.

"We do hereby certify that there is no claim or demand for extra work or otherwise, under or in connection with the contract of Wells & Newton Co., of N. Y., made with the Board of Education, School District of the City of New York, for Item 1, Installing Heating & Ventilating Apparatus on Public School Evander Childs HS situated at East 184 Street and Creston Avenue Borough of The Bronx dated the 25th

First Department, July, 1921.

[Vol. 197 day of October 1915. We do further certify that the last payment under said contract, to wit, the sum of Nine thousand and ninety seven......dollars will be in full of every claim or demand whatever in the premises, except as per our bills and schedules rendered for work done and materials furnished in conformity with Resolution of the Board of Education, dated July 3, 1918.

"WELLS & NEWTON CO. OF N. Y.,

Contractor.

By F. J. FEE, Pres."

To this in turn was subjoined the certificate of the auditor of the board of education that "the above certificate is in conformity with the by-laws, rules and regulations of the Board of Education, School District of The City of New York."

These certificates were duly filed in the office of the comptroller of the city of New York on or about July 13, 1920, and thereafter the comptroller delivered to the relator a warrant for the sum of $9,097 as a further payment in addition to payments theretofore made on account of the work of said relator covered by said contract for the installation of the heating and ventilating apparatus in said high school, the aggregate payments made on said account, including said last payment, being $74,770.

On July 22, 1920, the auditor of the board of education, after having received this claim and the schedules of cost, supported by affidavits of expert accountants, transmitted the entire facts, figures and claim in a report to the president of the board of education and chairman of the committee on salaries, finance and supplies.

The auditor's report, among other things, contains the following:

"This Bureau is without any evidence which we can use to offset or deny the claim, nor does it appear that it was the original intention of the Board of Education to do other than meet the situation in a fair and reasonable way.

"I would suggest that the settlement of this claim is a matter for your determination, either by an allowance in full or by some method of compromise, which might be agreed upon and acceptable to all parties concerned.

App. Div. 407]

First Department, July, 1921.

"Whatever may be the sum of settlement or allowance or agreement your Committee sees fit to make, I think it will be necessary to submit to the Board of Estimate and Appor-. tionment a special estimate under the provisions of Subdivision 8 of Section 877 of the Education Law."

In conformity with the suggestion contained in this report of its auditor, the board of education on July 30, 1920, passed the following resolution:

"Resolved, that, in pursuance of the provisions of Section 877, subdivision 8, of the State Education Law, the Board of Estimate and Apportionment be, and it is hereby, requested to appropriate the sum of $62,143.93, such appropriation or so much thereof as may be required to be used for the purpose of making payment to the Wells & Newton Company of New York of the amount found to be due and resulting from work performed at the Evander Childs High School, Borough of the Bronx, in accordance with the terms and stipulations contained in preambles and resolutions adopted by the Board of Education on July 3, 1918, the said preambles and resolutions continuing in performance a contract for the work of installing heating and ventilating apparatus at the above named school building, entered into between the Wells and Newton Company of New York, and the Board of Education on October 25, 1915." The secretary of the board of education transmitted a copy of this resolution to the board of estimate and apportionment on July 31, 1920, together with a copy of the report of its auditor before referred to, and the board of estimate and apportionment on August 6, 1920, passed the following resolution:

"WHEREAS, the Board of Education in a communication dated July 31, 1920, made requisition upon the Board of Estimate and Apportionment for an appropriation, under the provisions of section 877, subdivision 8, of the State Education Law, of sixty-two thousand one hundred and forty-three dollars and ninety-three cents ($62,143.93), such appropriation, or so much thereof as may be required, to be used for the purpose of making payment to the Wells & Newton Company of New York of the amount found to be due and resulting from work at the Evander Childs High School, Borough of the Bronx, in performance of a contract

First Department, July, 1921.

[Vol. 197 for the work of installing heating and ventilating apparatus at said named school building; therefore, be it

"Resolved, that the Board of Estimate and Apportionment, pursuant to the provisions of subdivision 8 of section 877 of the State Education Law, as amended by chapter 786, Laws of 1917, and predicated upon the requisition of the Board of Education dated July 31, 1920, hereinabove referred to, does hereby appropriate, subject to the approval of the Board of Aldermen, the sum of sixty-two thousand one hundred and forty-three dollars and ninety-three cents ($62,143.93), and when the approval of the Board of Aldermen shall have been obtained therefor the Comptroller be and he hereby is authorized to issue special revenue bonds in an amount not exceeding sixty-two thousand one hundred and forty-three dollars and ninety-three cents ($62,143.93); said special revenue bonds to be issued in accordance with the provisions of section 187 of the Greater New York Charter* and the proceeds to the amount of the par value or as much thereof as shall be required, to be used to pay whatever claim may be found in favor of the Wells & Newton Company under the provisions of law relating to the audit and payment of salaries and other claims by the Department of Finance; and such amount as may thus be paid, not exceeding the amount herein authorized, shall be included as a separate item in the annual estimate of the Board of Education for the year 1921 in accordance with the requirements of section 877, subsection B, of the State Education Law as amended. †"

All the votes at the meeting (16) were cast in favor of this resolution, including the mayor and comptroller. A certified copy of the resolution was sent to the board of aldermen on August 12, 1920, and the board of aldermen on August 17, 1920, adopted a resolution as follows: "Resolved, that the Board of Aldermen hereby approves of and concurs in the following resolution adopted by the Board of Estimate and Apportionment at a stated meeting held August 6, 1920," which resolution then incorporated therein in hæc verba the above-quoted

* See Laws of 1901, chap. 466, § 187, as amd. by Laws of 1910, chap. 683.- [REP.

† See Education Law, § 877, subd. 1, ¶ b, as added by Laws of 1917, chap. 786.- [REP.