Dubois v. Delaware & Hudson Canal Co.
New York Supreme Court
This was a motion to set aside a report of referees. In ,October, 1826, the parties entered into a written contract, by which the plaintiff undertook to construct a section of the canal of the defendants, and the defendants engaged to pay him at the rate of 9 cts. per cubic yard for excavation, 40 cts. per cubic yard for rock, in ledges or fragments measuring one cubic yard, and 11 cts. per cubic yard for embankment.
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This was a motion to set aside a report of referees. In ,October, 1826, the parties entered into a written contract, by which the plaintiff undertook to construct a section of the canal of the defendants, and the defendants engaged to pay him at the rate of 9 cts. per cubic yard for excavation, 40 cts. per cubic yard for rock, in ledges or fragments measuring one cubic yard, and 11 cts. per cubic yard for embankment. Other prices were specified for other kinds of work, but none other than those above mentioned for excavation. In the contract is contained a stipulation in these words: “ And it…
1Opinion of the Court
By the Court,
Sutherland, J.
The principal matter in dispute in this .case, is the extra allowance made to the plaintiff by the referees for hard-pan excavation. That item alone amounts to $4,500. The whole balance reported in favor of the plaintiff being but $5,336,91.
The referees adopted the estimate of the defendant’s witness, James McEntee, the resident engineer, who superintended the contruction of this part of the canal, as to the quantum of hard-pan excavation. He estimated it at 9000 cubic yards, and considered it worth 25 cents per yard' — that is, 14 cents per yard beyond common…
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