Judgment affirmed, with costs. Order affirmed, with costs.
BARRETT, J.:
On February 14, 1894, the plaintiff entered into a contract with the defendant to "regulate, grade, set curbstones, flag the sidewalks and lay crosswalks in One Hundred and Sixty-first street, from Gerard avenue to Jerome avenue, and build culvert at Cromwell's creek." The contract provided that the work was to be done "in accordance with the plan and profile of the work approved on the 21st day of September, 1893, on file in the office of the Commissioner of Street Improvements of the Twenty-third and Twenty-fourth Wards." It further provided: "No allowance will be made for any excess above the quantities required by such plans, lines and specifications on any part of the work * * * no allowance beyond the present surface of the meadow will be made for any shrinkage or settlement, and the cost of replacing any material sinking or settling will be included in the price paid for filling measured as above stated." The plan, as introduced at the trial, contains a series of blue and yellow lines below the grade line of One Hundred and Sixty-first street. They were marked "mud" where they crossed the creek, and were evidently intended to represent the surface of the ground. The engineer for the commissioner of street improvements, under whose direction the plan was made, testified that the two lower lines indicated the levels of the respective sides of the street. This plan bore the inscription: "No allowance will be made for any filling below the present surface of the ground," and also, "The lower line indicates the surface to which the embankment will be measured and allowed. No allowance will be made for any fill above this surface." The sole question is whether the plaintiff is entitled to recover for some 45,000 cubic yards of material used to fill in beneath the level indicated by blue and yellow lines on the plan. The contract, specifications and plan must be read together, and when so read are quite unambiguous. The specifications fix the limit to which allowance shall be made for filling as the "present surface of the meadow." These words seem plainly to indicate the surface of the ground at the time of the making of the contract. The argument that they mean a durable or tenable surface, capable of supporting filling, is, at the best, based upon a gratuitous assumption; and it directly conflicts with the conditions under which the language was used, for the "present surface," as the parties well knew, was most of it soft and yielding. And the meaning seems to be made entirely clear by the following provision that there shall be no allowance for "shrinkage or settlement," or for "material sinking or settling." If, however, there is any ambiguity in the contract and specifications, it is resolved by the plan. On this, lines are drawn to represent the surface of the ground, and a superscription states distinctly that no allowance will be made for filling below the surface as thus indicated. None of the exceptions were well taken. Parol evidence as to the meaning of the words "present surface of the meadow" was properly excluded, for there was no ambiguity in the written agreement. It is also contended that it was error to exclude testimony as to the meaning of the lines shown on the plan. But such testimony was not excluded. Some preliminary questions and some questions calling for conclusions were excluded, but the substantial fact as to what the lines indicated was, as we have seen, allowed to be proved by the engineer. None of the other exceptions require mention. We think, therefore, that the judgment rendered at the trial was clearly right. On the motion for a new trial it was shown that the words "The lower line indicates the surface to which the embankment will be measured and allowed. No allowance will be made for any fill below this surface," were not upon the plan when it was signed, or on January 3 or 4, 1894, when the plaintiff's agent examined it for the purpose of preparing a bid. This is established by uncontradicted proof. There was a conflict of evidence as to whether the blue and yellow lines were also added subsequent to the examination by the plaintiff's agent, or were on the plan throughout. But we cannot say that the weight of evidence on this head supports the plaintiff's claim. On the contrary, the weight of evidence is really with the defendant. That leaves for consideration merely the effect of the uncontradicted evidence as to the absence of the superscription. We think that superscription added nothing to the force and effect of the written agreement. As already stated, the specifications, by themselves, clearly negative the plaintiff's right to recover for material used to fill in below the surface of the meadow, as that surface existed when he undertook the work. The absence of the superscription from the plan in no way affected his rights or influenced his conduct. But there is another conclusive reason why he is not entitled to a new trial. On March 20, 1894, shortly after the commencement of the work, an interview took place between the plaintiff and Commissioner Haffen, Chief Engineer Risse and Engineer Thompson. This meeting was had for the very purpose of avoiding all misunderstanding as to the work which the plaintiff was to do. Certain questions were put to him and his answers taken down by a stenographer. He was asked the following questions and gave the following answers: "Ques. (by Chief Risse) One question I would like to ask, Mr. Barry, and that is, do you understand perfectly well that no allowances for filling in below the present surface, as indicated on the plan, will be allowed? Ans. (by Mr. Barry) You mean no allowance for displacement? Ans. (Chief Eng'r Risse) Yes, sir. Ques. (by Com'r Haffen) You signed the specifications, Mr. Barry, did you not? Ans. (Mr. Barry) Yes, sir. Ques. (by Com'r Haffen) You understood what you were bidding on, did you not, Mr. Barry? Ans. (by Mr. Barry) Yes, sir. Ques. (by Com'r Haffen) Mr. Thompson, I believe you have a question to ask, and that is, that there was no allowance to be made for filling in below the present surface line; you understood that, Mr. Barry, did you not? Ans. (by Mr. Barry) Yes, sir; I suppose the specifications stated that." We thus have the plaintiff's distinct admission that he understood and believed that he was to be paid only for filling above the actual surface of the ground, and was to receive no allowance for what sunk beneath this surface. If there was any ambiguity in the written agreement, this conclusive parol evidence of the understanding of the parties completely negatives the plaintiff's claim. The judgment and order should each be affirmed, with costs. Van Brunt, P.J., Rumsey, O'Brien and Ingraham, JJ., concurred.