Albert Saggese, Inc. v. Town of Hempstead

64 N.Y.2d 908 (1985)

Albert Saggese, Inc., and Anthony Rivara Construction Co., Inc., a Joint Venture, Respondent-Appellant, v. Town of Hempstead, Respondent. Town of Hempstead, Third-Party Plaintiff-Respondent, v. Royal Indemnity Company, Third-Party Defendant-Appellant-Respondent. Royal Indemnity Company, Fourth-Party Plaintiff-Appellant-Respondent, v. Albert Saggese, Inc., and Anthony Rivara Construction Co., Inc., a Joint Venture, Fourth-Party Defendants-Respondents-Appellants.

Court of Appeals of the State of New York.

Argued February 6, 1985.

Decided March 19, 1985.

Irving B. Lampert for Albert Saggese, Inc., and Anthony Rivara Contracting Co., Inc., a joint venture, respondent-appellant.

Edward Alan Shure for Royal Indemnity Company, appellant-respondent.

Gary M. Schwartz, Arthur W. Jaspan and A. Thomas Levin for respondent.

Chief Judge WACHTLER and Judges JASEN, MEYER, SIMONS, KAYE and ALEXANDER concur.

*910MEMORANDUM.

The order of the Appellate Division should be modified by providing that, on its second cause of action against the joint venture and its third counterclaim against the town, Royal shall *911 have judgment against the town in the amount of $54,060 and payment of that amount to Royal shall extinguish the town's obligation on the award of judgment in that reduced amount to the joint venture and, as so modified, order affirmed, with costs to the town against the joint venture and Royal. The weight of the evidence comports with the conclusion that the items claimed as extras, other than the additional pile lengths, resulted from plaintiff's failure adequately to gauge the cost of performance or from changes made as an accommodation to plaintiff and at its request rather than as a result of mutual mistake or of any fundamental change in the contract ordered by the town or its engineer. Modification is, however, required because the surety, as assignee of mechanic's lienors paid by it on plaintiff's behalf, rather than the plaintiff, is entitled to such moneys as may be due from the town.

Order modified in accordance with the memorandum herein and, as so modified, affirmed, with costs to the town against the joint venture and Royal.