Public Service Commissions Law, § 48. Section 14 of the Interstate Commerce Act contemplates that the Commission may award damages as a result of its determination with respect to a complaint. filed, while section 48 of the Public Service Commissions Law provides that if "reparation" be not made, and cause therefor be shown, the Commission may make an order requiring the carrier to "satisfy the cause of complaint in whole or to the extent which the commission may specify and require." The phraseology of section 40 of the Public Service Commissions Law, giving a right of action against a carrier for its failure to comply with an order of the Commission, is quite similar to that of section 8 of the Interstate Commerce Act, giving a right of action. Interstate Commerce Act, § 8 (4 U. S. Comp. Stat. 1913, § 8572, p. 3838). Both acts are similar with respect to conferring authority on the respective Commissions to require a carrier to change its tariff regulations or schedules for the Interstate Commerce Act, § 15 (4 U. S. Comp. St. 1913, § 8583, p. 3852); Public Service Commissions Law, § 49.

Since it is conceded and appears to be well settled that the Interstate Commerce Commission is authorized to direct a refund of unjust and unreasonable charges, although imposed in accordance with tariff regulations or schedules in force at the time which it was the duty of the carrier to follow, I am of opinion that like authority is vested in the Public Service Commission, and that it was the duty of the defendant to comply with the order directing restitution. I therefore vote for affirmance.

(170 App. Div. 218)

ALONG-THE-HUDSON CO. v. AYRES.

(Supreme Court, Appellate Division, First Department. December 3, 1915.) 1. CONTRACTS 319-BUILDING CONTRACTS—LIABILITY FOR EXTRA WORKNONCOMPLETION OF CONTRACT.

A building contractor's failure to complete the contract did not preclude it from recovering for extra work, labor, and materials outside of and beyond the scope of the contract, furnished at defendant's special instance and request.

[Ed. Note. For other cases, see Contracts, Cent. Dig. §§ 1458, 1476, 1477, 1479, 1493-1507; Dec. Dig. 319.]

2. CONTRACTS 232-BUILDING CONTRACTS-CONSTRUCTION-EXTRA WORK. A building contract in the main contract contained no provision regarding extra work, but attached thereto were six distinctive sets of specifications, covering electric work, painting, carpentering, etc. In the specifications covering carpentering there was a provision that no extra work would be paid for unless the price had been previously decided upon and the work ordered by the architect. Held, that this applied only to the work covered by that particular set of specifications.

[Ed. Note. For other cases, see Contracts, Cent. Dig. §§ 1071–1094; Dec. Dig. 232.]

3. DAMAGES 120-BUILDING CONTRACTS-FAILURE TO COMPLETE-MEASURE OF DAMAGES.

Where a building contractor failed to complete a contract with defendant, the measure of damages was the difference between the contract price and the actual cost to defendant of completion, and it was error to For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

allow defendant to recover the entire expense of repairing and correcting faults, errors, and omissions, without deducting the contract price.

[Ed. Note.-For other cases, see Damages, Cent. Dig. §§ 291–395; Dec. Dig. 120.]

Appeal from Judgment on Report of Referee.

Action to foreclose a mechanic's lien by the Along-the-Hudson Company against Charles H. Ayres. From a judgment entered on a report of a referee, dismissing the complaint on the merits, and awarding the defendant an affirmative judgment on his counterclaim, plaintiff appeals. Reversed, and judgment directed.

See, also, 168 App. Div. 944, 153 N. Y. Supp. 1104.

Argued before INGRAHAM, P. J., and LAUGHLIN, CLARKE, SCOTT, and SMITH, JJ.

McKelvey & Favour, of New York City (Paul Armitage, of New York City, of counsel), for appellant.

Lawrason Riggs, Jr., of New York City, for respondent.

CLARKE, J. Plaintiff and defendant entered into a contract whereby the plaintiff agreed to furnish the materials and labor and to build and erect a dwelling house on the real property described in the complaint for the defendant. The first cause of action alleged in the complaint is for the amount of the balance alleged to be due upon said contract. The first cause of action was dismissed upon the ground that the plaintiff had failed to complete. No question is raised upon this appeal as to the propriety of such dismissal.

[1] The second cause of action was for $2,005.52, the value of labor and materials, not specified or included in the written contract, furnished at the special instance and request of the defendant, and for which he promised and agreed to pay. This cause of action was likewise dismissed, upon the ground that by reason of the failure of the plaintiff to fully or substantially perform the contract herein plaintiff was not entitled to receive the moneys claimed on account of the alleged extras incident to said contract. The referee found as matters of fact that between the 20th day of September, 1909, and the 1st day of January, 1911, at the special instance and request of the defendant, plaintiff performed certain extra work and furnished. said extra materials consisting of the following items (enumerating them); that all of the said extra work and materials were furnished by the plaintiff at the special instance and request of the defendant; and that a fair and reasonable value of the same is $605.47.

[2] There was no provision in the main contract in regard to extra work. Attached thereto were six distinct and separate sets of specifications, covering electric work, painting, plumbing, carpenter, heating, and mason. The only one of these that referred in any way to extra work was the carpenter. This read:

"Extra Work. No extra work or charges therefor will be paid for unless price shall have been previously decided upon and the work ordered by the architect."

This provision, of course, was confined to the subject of the particular specification, to wit, carpenter's work, and the referee has spe

cifically found that extra work, labor, and materials were furnished at the special instance and request of the defendant. It is clear that the items specified by him, and for which he has found a reasonable value of $605.47, were outside of and beyond the scope of the contract. In Mitchell v. Dunmore Realty Co., 156 App. Div. 117, 141 N. Y. Supp. 89, affirmed 213 N. Y. 669, 107 N. E. 1081, in an action to foreclose a mechanic's lien the Special Term had dismissed the complaint, first, as to the contract work, and, second, as to the extra work on the ground that it was governed by the contract and was not payable until the contract work had been completely performed. This court said:

"It being conceded that the plaintiff did not complete, the court was justified in deciding against the plaintiff in so far as his cause of action was for a recovery for work done under the contract. But the plaintiff proved a large amount of extra work entirely outside the contract, performed upon the express orders of the defendant Murray. No claim was made upon the trial that this extra work was not done properly, at Murray's request, nor as to the price thereof as stated. This claim was also disposed of by the trial court upon the same basis as the claim for work under the contract. Here, we think, was error. There is no prevision whatever in the contract governing extra work, nor is extra work mentioned or alluded to or provided for. Hence, being extra work, and being outside of the contract, it could not come within the provisions thereof, or be governed by the clause in regard to payment upon full completion. Clearly a great part of the extra work sued for comes within the definition in Shields v. City of New York, 84 App. Div. 502 [82 N. Y. Supp. 1020], as 'work arising outside and entirely independent of the contract-something not required in its performance'-and as to such work plaintiff is entitled to recover, although he did not complete his contract. Woodward v. Fuller, 80 N. Y. 312; Garnsey v. Rhodes, 63 Hun, 632, 18 N. Y. Supp. 484, affirmed 138 N. Y. 461 [34 N. E. 1991. See, also, Hedden Construction Co. v. Rossiter Realty Co., 136 App. Div. 601 [121 N. Y. Supp. 64]."

*

*

Upon the authorities cited, the dismissal of the second cause of action was error.

[3] The defendant in his answer counterclaimed his damages for the failure by plaintiff to complete. The referee found that by reason of the plaintiff's failure to complete the defendant had been put to and incurred the expense of repairing and correcting certain of the faults, errors, and omissions of said contract in the amount of $1,004.25. Although he had dismissed the claim for extra work as a cause of action, he allowed the amount found by him—to wit, $605.47—there for as an offset, and directed judgment for defendant for the difference, namely, $398.78. In this regard the court applied an erroneous rule. The correct rule of damages on failure to complete is the difference between the contract price and the actual cost to the defendant of completion. The unpaid balance of the contract price was $878.69. Deducting that amount from the entire sum found by the referee to have been paid by the defendant for completion leaves $125.56 as the amount that should have been awarded on the counterclaim. Deducting this from the amount of the extra work as found shows a balance due to the plaintiff of $479.91, for which judgment should have been entered for the plaintiff.

Accepting the referee's findings of fact, the judgment appealed from, and the following conclusions of law, the fifth, ninth, thirteenth, four

teenth, and the fifteenth, should be reversed, and proper findings in lieu thereof, as indicated in this opinion, presented, and judgment should be entered for the plaintiff for said sum of $479.91, with costs and disbursements to the appellant. Settle order on notice.

concur.

All

PEOPLE ex rel. CROPSEY, Dist. Atty., v. COURT OF SPECIAL SESSIONS OF CITY OF NEW YORK et al.

(Supreme Court, Appellate Division, Second Department. December 3, 1915.) 1. FINES 18-REMISSION-STATUTE-"TO REMIT."

Under Inferior Criminal Courts Act (Laws 1910, c. 659) § 31, subd. 2, providing that "the court shall have jurisdiction at the request of a defendant to remit a fine imposed by it and in place of such fine to substitute in its discretion imprisonment," where the court imposed sentence of both fine and imprisonment as prescribed by Liquor Tax Law (Consol. Laws, c. 34) § 36, subd. 1, it could remit the fine without substituting added imprisonment therefor, leaving defendant to serve only the original term set by the sentence, since a construction of the act calling for substitution of imprisonment for the remitted fine would render necessary disregard of the words "in its discretion," which naturally refer to the word "substitute," referring to the exercise of judicial function in consideration of circumstances calling for remission of fine shown by defendant, and so can be read as expressive of a legislative intent, not to be disregarded, while "to remit" is an apt word to express the power to annul the fine, not implying that there may be only a substitution of imprisonment therefor, since it means to give up or to relinquish; the exercise of the statutory jurisdiction to remit not being inconsistent with the exercise of jurisdiction to try the case and pronounce sentence.

[Ed. Note.-For other cases, see Fines, Cent. Dig. § 19; Dec. Dig. 18.]

2. FINES 18-REMISSION-STATUTES.

Code Cr. Proc. § 484, provides that the power to remit a fine imposed by any court for any criminal offense shall be exercised only as provided in the section, and that, in case of a fine imposed by a court not of record or by any inferior court of local jurisdiction for any criminal offense whatever, the county judge of the county in which the fine was imposed, and, in case of a fine imposed by such a court in the city of New York, the Court of General Sessions or any judge thereof, upon five days' notice to the district attorney of the county in which such fine was imposed, shall have power to remit it. Held, that the powers of the County Court in the matter of remitting fines, as conferred by section 484, and as expressed in Inferior Criminal Courts Act, § 31, subd. 2, providing that the court in its discretion shall have power to remit a fine, substituting imprisonment, are concurrent.

[Ed. Note. For other cases, see Fines, Cent. Dig. § 19; Dec. Dig. 18.]

Appeal from Special Term, Kings County.

Prohibition by the People, on the relation of James C. Cropsey, as District Attorney of Kings County, against the Court of Special Sessions of the City of New York and others. From an order denying relator's application for writ of absolute prohibition, the relator appeals. Order affirmed.

Argued before JENKS, P. J., and STAPLETON, MILLS, RICH, and PUTNAM, JJ.

For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

Harry G. Anderson, Asst. Dist. Atty., of Brooklyn (James C. Cropsey, Dist. Atty., and Hersey Egginton, Asst. Dist. Atty., both of Brooklyn, on the brief), for appellant.

Thomas F. Magner, of Brooklyn (George A. Green, of Brooklyn, on the brief), for respondent City of New York.

John L. Danzilo, of Brooklyn, for defendant Philippo.

JENKS, P. J. [1] Subdivision 2 of section 31 of the Inferior Criminal Courts Act reads:

"2. It shall have jurisdiction at the request of a defendant to remit a fine imposed by it and in place of such fine to substitute in its discretion imprisonment."

The relator contends that when the court, pursuant to this statute, remits a fine, the court must substitute imprisonment therefor. Such procedure would be prescribed precisely without the words "in its discretion." But we should not disregard these words, nor reject them as surplusage, nor consider them as misplaced, if they, in their place and afforded their recognized meaning, can be read as further expressive of a legislative intent. I think that the words naturally refer to the word "substitute." To remit is:

"To give up; to relinquish; as to remit a fine." Burrill's Law Dictionary. "To discharge, as, a penalty; to pardon, as an offense." Anderson's Law Dictionary.

Thus the word is apt to express the power to annul the fine, and does not necessarily imply that there may be only a substitution of imprisonment therefor. I think that the legislative intent expressed is that the court may, not must, substitute imprisonment. The words "in its discretion" are not referable to any other expression of this sentence, as if misplaced after the word "substitute." The phrase "It shall have jurisdiction" but confers upon the court the right to determine whether there should be remission (Daniels v. Tearney, 102 U. S. 415-418, 26 L. Ed. 187) and does not require the exercise of the power of remission. Therefore the qualification of such phrase by the words "in its discretion" would be unnecessary, if not redundant.

The jurisdiction is to be exercised at the request of the defendant, which indicates that he must show cause why the court should remit. The Legislature contemplated that facts thus brought before the court might warrant either absolute remission of the fine or substitution of imprisonment therefor. The case at bar affords illustration. The punishment prescribed is both fine and imprisonment. Section 36, subd. 1, Liquor Tax Law. Absolute remission of the fine would not annul the punishment, for the original imprisonment imposed remains. The court might be satisfied that the fine should not be exacted and that the punishment of the original imprisonment under the circumstances sufficed, or the court might be satisfied that, although the fine should not be exacted, yet the punishment of imprisonment, without some further imprisonment in substitution of the fine, would not suffice. The discretion referred to is the exercise of judicial function in consideration of the circumstances shown by the request of the defendant. Thus