Sherman v. . the Mayor, C. of New-York
New York Court of Appeals
On error from the supreme court. Sherman sued the mayor aldermen and commonalty of the city of New-York, in the superior court of that city.
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On error from the supreme court. Sherman sued the mayor aldermen and commonalty of the city of New-York, in the superior court of that city. The cause was heard before referees appointed by that court, and the case was this : On the 17th of November, 1.842, a written contract, under seal, was entered into between the plaintiff and defendants, whereby the plaintiff agreed “ to furnish all the materials and labor necessary to complete the excavation, backfilling, ramming, and re-pavitig” of a trench for water pipes in 14th street, from Union square to avenue A. The trench was to be six feet…
1Opinion of the Court
Jewett, Ch. J.
The principal question in dispute between the parties is, whether the plaintiff had a right to show and recover the real value of excavating that portion of the trench composed of, “hard pan,” or “rock.” The plaintiff offered such evidence, which the referees admitted, although objected to. The plaintiff insists' that for excavating such portions of the trench no price was agreed upon between the parties, and that therefore he is entitled to show its value, and recover accordingly ; that the contract merely contemplates and provides for excavating common earth. The argument for…
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