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551

Reporter's Statement of the Case tions of the main building, and that the overhead incurred by plaintiff during this period amounted to $144.12 a day, or $38,624.16, from which should be deducted an overhead of $8,684.32 allowed by change orders of the Government during the period from September 25, 1933, to October 13, 1934. The balance is included in the total sum of $177,908.14 set out above. The items of this total amount are as follows:

Increased cost of roofing and sheet metal, in the amount of $14,006.11, represents the difference between the subcontractor's price of $42,000, as appears in the contract with the Bushwick Cornice Work, Inc., and the total amount it cost plaintiff to complete the work. The subcontractor, after starting its work, advised plaintiff that due to the faulty foundation designs its cost of performance had gone up and that it could no longer guarantee the price. In order to get the work done plaintiff had to meet this new cost of labor and material.

Increased cost of furring, lathing, and plastering, in the amount of $21.346.98, is the difference between the subcontractor's price of $88,500, as appears in the contract with Martin Conroy & Sons, and the total it cost plaintiff to complete this work. The subcontractor, after completing its work on the smaller buildings, began plastering on the main building about one year later than anticipated, due to the faulty foundation design. It notified plaintiff that it could no longer guarantee its price but would continue if plaintiff would meet its cost of labor and material, which plaintiff did.

Increased cost of miscellaneous and ornamental iron, bronze, aluminum, and rust-resisting metals, in the amount of $23,826.68, represents the difference between the subcontract price of $27,500 (a total of the sum of $5,000, as set forth in the contract of August 4, 1933, and the sum of $22,500, as set forth in the contract of October 20, 1933, with the Consolidated Bronze Corporation), and the total cost to plaintiff to complete the work. The subcontractor had the materials fabricated, but the work could not be installed as planned because of the disarranged schedule caused by the suspension of certain work, due to the faulty

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Reporter's Statement of the Case

design of the foundations. The subcontractor, because of the delay, could not guarantee its price, and as a result plaintiff had to meet the pay roll and material bills. The subcontractor quit and plaintiff was compelled to arrange with others to complete the work.

Increased cost of concrete and cement work, including reenforced concrete footings, in the amount of $58,722.77, represents the difference between the subcontract price of $145,000, as set forth in the contract with Taormina Bros. Concrete Corporation, dated September 6, 1933, and the total cost to the plaintiff to complete the work. The subcontractor started work but could not continue efficiently because of the defective foundation designs of the Government. On November 2, 1933, the Government stopped foundation work on the main building after the subcontractor had done a substantial part of its work. Later, as stated in a former finding, it was decided that it was necessary to install pile foundations to carry the weight of the building. The original foundation had to be removed. The subcontractor complained to plaintiff of its inability to proceed and demanded reimbursement for its expenses. On May 1, 1934, the subcontractor quit, removed its equipment, and filed suit against plaintiff because of the delay. On May 4, 1934, plaintiff sublet this work to another subcontractor at an increased cost. Because of the delay caused by the faulty design of the foundation plaintiff was required to incur an additional expense of $58,722.77 in excess of the subcontract price to get this work done.

Increased cost of excavating and grading, in the amount of $23,029.76, represents the difference between the subcontract price of $23,000 for this work, as appears in a contract dated July 14, 1933, with Rockland Construction Company, and the total cost to plaintiff of completing the work. The subcontractor began its work on September 18, 1933, and continued until its work was disrupted by the faulty design: of the foundations. The subcontractor complained of the delay and notified plaintiff that its guarantee as to price was off. Plaintiff had to advance money to the subcontractor to meet pay rolls in order to keep it on the job. The

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Reporter's Statement of the Case

subcontractor finally quit, removed its equipment from the site before the work was finished, and filed suit against plaintiff because of the delay. Plaintiff made other arrangements to complete the work. Because of the delay caused by the faulty design of the foundations plaintiff was compelled to incur an additional expense of $23,029.76 over the subcontract price in order to get this work done.

Monthly photographs, where required by paragraph 35 of the specifications, were taken by plaintiff. If the work had not been delayed by the faulty foundation plans, plaintiff would have been saved the amount of $384.75, which it expended for monthly progress photographs during the excess period of time so required because of the faulty foundation plans.

Increase in price of brick, in the amount of $1,273.50, represents the additional expense plaintiff had to incur because of the delay caused by faulty foundation design. Plaintiff sublet the brickwork and guaranteed to its subcontractor the price of the brick. The price was based on the original schedule time for doing the work. On December 20, 1933, while work was suspended, the persons supplying the brick advised plaintiff that the time limit on the price was extended from May 1, 1934, to October 1, 1934, but as to delays after October 1, 1934, the brick would cost $1.50 per thousand additional because of increased costs. The brickwork on the smaller buildings was completed prior to October 1, 1934, but the brickwork on the main building was not then completed, due to the delay on the foundations. Plaintiff was required to incur an additional expense of $1,273.50 for brick delivered after October 1, 1934, which expense would not have been necessary but for the delay on the foundations. But for the faulty design of the foundations, all brickwork would have been completed by April 30, 1934.

Temporary heat, in the amount of $1,692.63, represents the cost of furnishing temporary heat. The greater part of the contract work was extended into the two winters of 1934-1935 and 1935–1936, and it was necessary to provide temporary heat during the construction work. The sum

92 C. Cls.

Reporter's Statement of the Case

of $1,692.63 so expended by plaintiff for such temporary heat would have been avoided but for the delay due to the faulty design of the foundations.

New York State unemployment insurance for 1936, in the amount of $179.00, represents the cost of such insurance on salaries paid by plaintiff in the performance of the contract work in the year 1936. Inasmuch as the New York State unemployment insurance first became effective on January 1, 1936, all such insurance for 1936 so paid by plaintiff would have been avoided if the faulty design of the original foundations had not projected the work into the year 1936.

Removing rust from reenforcing steel, in the amount of $1,122.43, represents the cost incurred by Eureka Fireproofing Company, plaintiff's subcontractor, during the period from May 7, 1934, to July 2, 1934, in removing rust from the reenforcing rods which were on the job site during the period of delay. In May 1934, when plaintiff was ready to begin work on the reenforcing foundations, the defendant ordered plaintiff to wire-brush the steel reenforcing rods. During October 1933, plaintiff had the steel delivered to the site to install in the foundations according to the original schedule for doing the work. During the winter it was covered with planks and tarpaulin, but rust accumulated on the reenforcing rods. Plaintiff offered to remove the flake rust, but defendant insisted that each piece of steel be wirebrushed so as to make it free from rust. Defendant refused to pay for the wire-brushing of the steel. Plaintiff's subcontractor began the foundation work on May 4, 1934, and incurred an additional expense of $1,122.43 in doing that work, which would not have been necessary but for the delay due to the faulty design of the original foundations.

Storage and increased cost of erecting structural steel, in the amount of $2,383.09, is the cost borne by plaintiff in the settlement of a claim of the Bethlehem Fabricators, Inc., subcontractor. The structural steel had been fabricated according to plan, but it became necessary to place it in storage since work on the main building had been suspended. Plaintiff sublet the contract for the furnishing and erection of the structural steel for the amount of $110,000. On December 28, 1933, the subcontractor de

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Reporter's Statement of the Case

manded of plaintiff the sum of $4,998.99 to cover storage and increased cost of erection because of the delay. This claim was settled for the sum of $2,383.09, which was attributable to the delay caused by the faulty design of the foundations.

9. The contract required plaintiff to remodel a three-story and basement building, known as the existing boiler plant and kitchen building, in order to accommodate a larger boiler plant, laundry, and attendants' quarters. On March 30, 1936, defendant released the old laundry building, and plaintiff, on June 15, 1936, completed the remodelling of the kitchen building into a laundry and attendants' quarters.

Plaintiff had constructed a driveway on the east side of the rear wing of the main building up to either side of the laundry building. This could not be completed until the old laundry building had been released, as it was in the line of that work. The old laundry building also prevented the completion of the new boiler plant and switchboard, as the underground coal vault projected about 4 feet under the old laundry building. Plaintiff had intended doing this work concurrently with the construction of the new main building. The contract drawings bearing date of December 27, 1932, showed the site to be clear, and no such encroachments by the old laundry building.

Defendant granted an extension of 65 days because of the delay in the completion of the laundry, due to the delay in the release of the old laundry building. Plaintiff claims its cost for overhead during the period of this delay was $10,638.55, but it gets this figure by computing the overhead at a rate higher than we have fixed for computing the overhead for the delay in the construction of the main building. There is no satisfactory evidence showing that the overhead for this period should be computed at a greater rate than the overhead during the delay on the main building which has been fixed at $144.12 a day, Computing the overhead for the 65 days at the last named rate it is found that the plaintiff is entitled to recover on this item the sum of $9,367.80.

10. On July 23, 1936, plaintiff requested an extension of the contract time equal to the entire period of delay in its completion of the work. On September 8, 1936, the Direc

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