COURT OF CLAIMS

IN 1910

PURL D. HUNT T. THE STATE OF NEW YORK

Claim No. 9030.

When State not liable for Act of Independent Contractor.

Where claimant's property is flooded by the construction of a cofferdam by a contractor, the flooding resulting from the manner in which the contractor did his work and not arising necessarily out of the contract itself, the contractor and not the State is liable, his relation being that of an inde pendent contractor. The rule is well settled that there is no liability on the part of the State for acts similar to those referred to where it enters into a contract with a competent contractor, doing an independent business, who agrees to furnish materials and labor and make the entire improvement according to specifications prepared in advance for a lump sum or its equivalent, even when it reserves the right to change, inspect and supervise to the extent necessary to produce the result intended by the contract, provided the plant is reasonably safe, the work is lawful and is not a nuisance when completed and there is no interference therewith by State officers which results in injury.

(Decided November 22, 1909.)

Hugo Hirsch, for claimant.

The Attorney-General, for the State.

RODENBECK, J.- In this and some other claims in its vicinity along the Hudson river, an item is included for flooding due to the construction of a cofferdam by the contractor, in connection with the work of constructing a dam across the Hudson river. For this item the contractor and not the State is liable. The flooding resulted from the manner in which he did the work and did not arise necessarily out of the contract itself. His relation to the State was that of an independent contractor and the rule is

Hough v. State of New York.

well settled that there is no liability on the part of the State for acts similar to those above referred to where it enters into a contract with a competent contractor doing an independent business who agrees to furnish necessary materials and labor and make the entire improvement according to specifications prepared in advance for a lump sum or its equivalent even when it reserves the right to change, inspect and supervise to the extent necessary to produce the result intended by the contract, provided the plan is reasonably safe, the work is lawful and is not a nuisance when completed and there is no interference therewith by state officers which results in injury. (Uppington v. City of New York, 165 N. Y. 232; Berg v. Parsons, 156 N. Y. 109; Hexamer v. Webb, 101 N. Y. 377; Kelly v. City of New York, 11 N. Y. 432; Deming v. Term Ry. of Buffalo, 169 N. Y. 1.) Under this rule. no allowance should be made to the claimant for the flooding of his land and the damages occasioned thereby resulting from the construction of the cofferdam during the progress of the work and before its acceptance by the State.

DAVID L. HOUGH V. THE STATE OF NEW YORK.*

Claim No. 9344.

Claim for Compensation Under a Contract for Expert Testimony.

A retainer, in its legal sense, is a sum of money paid to secure the services of the person to be employed, and the sum named as a retainer is due as soon as the person retained accepts the employment.

Where an expert, under a contract with the Attorney-General to give certain testimony in the so-called Consolidated Gas Case was to receive a stated amount as a retainer and another sum per day while actually engaged, as a preliminary to such testimony examined the testimony of an expert for the Gas Company, but failed to give testimony of material benefit to the State as he had promised to do under the contract, he was entitled to recover the sum named as a retainer, said sum becoming due when he accepted the testimony of the Gas Company's expert to examine, and began his work, said retainer being a fixed sum, separate from his daily compensation, and in no

Opinion by Swift, P. J.

way dependent upon his future work, or what the result of that work might be; but he was not entitled to recover the sum per day.

RODENBECK, J., dissenting.

(Decided December 22, 1909.)

Kellogg and Rose, for Claimant.

The Attorney-General, for the State

SWIFT, P. J. The claimant seeks to recover for services rendered at the request of the Attorney-General, and under a contract made with him as an expert witness in the so-called Consolidated Gas Case.

One of the questions in that case was, whether the Consolidated Gas Companies could manufacture gas at 80 cents at a fair pro

fit.

The gas companies had given a large amount of testimony as to the value of its property invested in that business as bearing upon the question of the cost of production. The Attorney-General, and the counsel acting for him, thought it very material and important to show that the value placed upon its property by the gas company was fictitious and very materially higher than the real value. To show that the values put upon its property by the gas company were much in excess of its real value, the Attorney-General, who was a party to the litigation, sought to obtain the testimony of expert witnesses who could testify that the testimony given by the expert Mayer, who was called by the gas company as to values of its property, had placed too high an estimate upon the value of the property. Mr. Kirby, who was one of the counsel representing the Attorney-General, was referred to the claimant herein as an expert upon the value of such prop erty, and communicated with him by letter which led to a personal interview about the first of October, 1906. Mr. Kirby stated to the claimant in substance the point they desired to establish, and said he had a copy of some of the testimony of the Gas Company's expert, Mr. Mayer, and would have more shortly, and wanted to know of claimant whether he would take the testimony

Hough . State of New York.

and go over it and let Mr. Kirby know if he could give a value to this property substantially less than that given by Mr. Mayer, and also that they wanted the claimant to prepare an estimate of the cost of construction of an ideal modern plant, with a capacity equal to all the present plant of the Consolidated Gas Companies. The claimant said, "He could not say offhand whether he could testify that the value given by Mr. Mayer was higher than it should be, that he wanted an opportunity to go over the testimony." In this interview claimant stated in answer to a question by Mr. Kirby, that his terms would be a retainer of one thousand dollars ($1,000.00), and fifty dollars ($50.00) a day while actually engaged. To this Mr. Kirby assented. Some time afterwards claimant stated to Mr. Kirby that he had looked over the testimony of Mayer and that he would be able to make an appraisal of this property of the Consolidated Gas Company which would be materially lower than that of Mr. Mayer. The terms of employment were again mentioned. The next day after this interview Mr. Kirby received a letter from claimant putting into writing the terms of his employment. To which Mr. Kirby replied, that it was satisfactory and as he understood it. These two letters furnished the only written evidence of a contract. Claimant contends that the two letters made a complete contract without any reference as to what testimony he should give. The State contends that it was a part of the agreement, and the very founda; tion of the contract that claimant would and could make an appraisal of the property and testify to the correctness of the same that would materially reduce the value of the property as testified to by Mr. Mayer.

I am of the opinion that the contract was, that the claimant should and would make an appraisal and testify to values that would be of material benefit to the Attorney-General, otherwise, there was no inducement to employ the services of the claimant, and I am of the opinion that claimant did not perform this part of the contract. There was only a reduction of about ten per cent in the appraisal made by claimant from that of the witness Mayer, and this made so slight a difference in the cost of produc

Dissenting Opinion by Rodenbeck, J.

tion of gas by the Consolidated Gas Companies, that it was of no material benefit to the Attorney-General, and claimant was not called as a witness.

But, upon the facts as claimed by the State, I am of the opinion that the claim should not be wholly dismissed. According to the testimony of the State's witnesses, claimant could not say what he could testify to, or what his appraisal might be until he had gone over the testimony of the expert of the Gas Company. There was a mass of this testimony, and Kirby says, that he gave claimant a copy of part of the testimony to go over at the first interview, and at that time claimant stated that he would require a retainer fee of one thousand dollars ($1,000.00), and fifty dollars ($50.00) a day while actually engaged in making the appraisal and in testifying as an expert, to which Kirby assented.

A retainer in its legal sense is a sum of money paid to secure the services of the person to be employed. This sum was due as soon as the claimant accepted the employment. It is a fixed sum separate from his daily compensation, and I am of the opinion that he is entitled to this amount when he accepted the testimony of Mayer to examine and began his work. The retainer was in no way dependent upon his future work, or what the result of that work might be.

I am of the opinion that claimant is entitled to an award against the State in the sum of one thousand dollars, and in addition thereto the sum of three hundred and fifty dollars ($350.00) for disbursements made for accountants with the consent of the State.*

Murray, J., concurs; Rodenbeck, J., dissents.

RODENBECK, J. (dissenting). This claim is one to recover compensation as an expert in litigation involving the constitutionality of the so-called Eighty Cent Gas statute. The validity of the statute was attacked by the Consolidated Gas Company and expert evidence was introduced in the case on the part of the company

Judgment reversed and new trial granted in 145 App. Div. 718; 130 N. Y. Supp. 407.