and 112 New York State Reporter amount equal to the sum of $22,873-77, and, of the amount necessary to complete the actual work required, an amount equal to $90,067.52. There are several provisions in the contract, specifications, and statement which it is claimed amount to a reservation by the state of the right to terminate, at any time it desired, the work under this contract. First, in the bid, which is written and signed by the contractors, at the foot of the "statement" of estimated amounts, etc., they offer "to construct and to finish, so far as the superintendent of public works shall direct, all of the work to which prices are aifixed in the above schedule in all respects according to the contrac and specifications," etc., “✶ ✶ ✶ this day exhibited. * But this offer is no part of the contract, and it is to be noticed that in the contract their undertaking is to do all the labor, etc., necessary to "construct and to finish in every respect" the 5.87 miles in question, and such work is to be done according to the plans and specifications furnished, etc. Here is a distinct undertaking on the part of the contractors to finish the contract according to the plans, and there is no provision or suggestion here that they are to do that work, or so much thereof as the superintendent of public works shall require. Under the contract, they are required to do it all. And the mutual obligation on the part of the state to permit them to do it all, and to pay them accordingly, is not in any way limited by any provision here made. The limitation suggested in the offer is not incorporated into the contract. Moreover, if such offer is to be deemed a controlling part of the contract, then the contractors' obligation to do work would extend only to the amounts specified in the various classes named in the statement under which it is written, for the language there used is to "do all of the work to which prices are affixed in the above schedule," etc. It will hardly be claimed that either party expected that no more work should be done than was specified in that estimate, inasmuch as the contractor is distinctly notified that the quantities there named are "approximate only"; and the provision of the contract headed "Alterations and Directions,' etc., and the twenty-eighth specification, hereinafter referred to, are utterly inconsistent with that theory. So, also, the contractors in several instances did more work than was specified in the estimate; thus indicating that the parties understood that the amount of work to be done was not limited by that estimate. In all these respects the offer differs materially from the contract, and cannot be deemed to modify or control it. There are certain other provisions in the contract in which it is required that the work shall be "prosecuted at the times and in the manner directed by the resident engineer," etc. These have reference to the method of carrying on the work, and clearly were not intended to provide that the resident engineer might at any time order an abandonment of the work. It was further provided in section 28 of the specifications that "the state reserves the right to increase or diminish the amount or amounts of any class of work from the amount shown on the bidding sheet," and in that event the amount of work required will be done at the rates named in the contract, and no claim for damages or prospective profits shall be made on account of such change. It is insisted that this amounts to a reservation by the state of the right to cease the work at any time, without incurring any liability for damages. The argument seems to be that under this provision the state might diminish the amount of each class of work specified in the estimate or "bidding sheet" to little or nothing, and in that manner abandon the work long before its completion. The whole scheme of the contract repels the idea that such was the purpose or understood meaning of this provision. The "bidding sheet," to which it refers, was the estimate of quantities, etc., required by the statute above cited to be made by the engineers, and submitted with the notice for bids. These quantities were approximate only. The contractors were so notified, and directed to ascertain such quantities. for themselves, and the real purpose of section 28 was to protect the state from any claim for damages or prospective profits should it turn out upon completion of the work that the quantity of any class therein described varied from that given in such schedule. It was a mere declaration that the quantities specified in that preliminary estimate were not to be controlling upon the state. That estimate having been named in the first provision of the contract as a part of the contract, it was deemed necessary for the state to repel the possible inference that only such work as was therein specified would be required, and hence the provisions of section 28 were inserted. The idea that the completion of the work might be prevented or evaded under this provision never occurred to either party. Had the real agreement between the parties been to the effect that the contractors should do all the work necessary to complete the improvement of this section of the canal, or so much thereof only as the state should require, it is fair to assume that such a provision would, in plain and distinct terms, have been inserted in the contract itself. In view of its absence, and of its great importance, had such been the agreement, I am of the opinion that the several disconnected, indefinite, and inconsistent provisions which the state now relies upon should not be construed into such a reservation. If the state is correct in its claim as to the construction of the contract, these contractors were obligated to perform work and furnish materials that at agreed prices would amount to at least over $98,000, and possibly much more, while the state might have ended their operations before they had earned enough to pay the expenses incurred in preparing for the work. Such an agreement is not usual, and should not be inferred from language no more explicit than is to be found in this contract. I have given so far only what seems to me a fair construction of the terms of the contract as it reads, and, if it can be shown that such a contract was authorized, I see no way by which the state can avoid payment of damages for its breach. But there are other considerations, which are barely suggested by the record and by the arguments, which to my mind have a very serious bearing upon the proper conclusion to be reached in the premises. Until we are furnished with a record which discloses all the material facts bearing upon the question of the authority of the superintendent of public and 112 New York State Reporter works to make a contract in terms like the one before us, we shall not have sufficient data for a proper determination of the matter. It must be admitted, I think, that the superintendent of public works had no power to create a contract debt on the part of the state beyond the $9,000,000 voted by the people under section 4, art. 7, of the constitution. Nor had the state the power to authorize the creation of a debt beyond that sum. Hence it would seem that, if the aggregate of the contracts let contemplated the expenditure of a greater sum, then, as to such excess, they are not enforceable against the state. It would, perhaps, seem plainer if the entire improvement was under a single contract. No one, I apprehend, would then say that a contract involving an indebtedness of $20,000,000, where a debt of only $9,000,000 was authorized, could be enforced beyond the $9,000,000 appropriated. This seems to have been clear to the legislature in conferring upon the superintendent of public works the power to contract. The legislature intended to keep within its constitutional powers, and did not intend that the aggregated contracts should involve the making of improvements beyond the sum voted by the people. This is plain from the reading of the act of 1895 (chapter 79), and the act as amended in 1896 (chapter 794). By the amendment of 1896 it was provided that: "None of the work called for by this act shall be contracted for until the state engineer shall have ascertained with all practicable accuracy the quantity of embankment, excavation, masonry, the quantity and quality of all materials to be used and all other items of work to be placed under contract, and a statement thereof, with the maps, plans and specifications, corresponding to those adopted by the canal board, and on file in the office of the state engineer, is publicly exhibited to every person proposing or desiring to make a proposal for such work. The quantities contained in such statement shall be used in determining the cost of such work." The act then provides for filing the proper maps, etc., with the state engineer, and that no alteration shall be made in the specification or the plan of any work under contract during its progress, except an approval of such alteration be in writing, signed by the parties. "No change of plan which shall increase the expense of any such work, or create any claim against the state for damages arising therefrom, shall be made," unless a written statement is submitted to the canal board, and their assent is obtained. It is here contemplated that the bids should be for specific work, and the price bid should determine the cost of the improvement contracted to be done. Safeguards are provided against any increase over the sum bid, and, i these directions were adhered to, it was reasonable to suppose that the aggregate of the sums bid would fairly determine the whole cost of the entire, improvements contracted for. If the aggregate of these bids were within the $9,000,000, it would seem that the contracts, up to the bids made on each, would have been authorized. I assume that such was the fact, to wit, that the aggregate of these bids were within that sum, though this record shows nothing on the subject. If the sum of these bids practically exhausted the $9,000,000, I do not see how there remained any room for expansion in any contract; and the elastic quality in the direction of increase over the sum bid in any contract would seem, under this theory, to have been prohibited. I deduce from this that the $9,000,000 was, at the time the bids were accepted and contracts entered into, divided up, and to each contract was apportioned the sum stated in the bid, which the law said should "determine the cost of the work"; and if the contract, in terms, contemplated the expenditure of any sum beyond the sum so apportioned, it was to that extent unauthorized. For the same reason it would seem, also, that if any sum has been paid to any contractor, beyond the sum bid, such payment was unauthorized, because there was no fund from which it could be lawfully paid; and it could not be properly taken from the sum apportioned to any other contractor. If we are right in this theory of an apportionment of the $9,000,000 to the several contractors up to the amount of their bids, we are led to the conclusion that each contract was binding upon the state up to the amount of the bid and not beyond, provided, of course, that the aggregate of the bids did not exceed $9,000,000, and that any abandonment by the state of any contract before the amount of the bid had been exhausted was a breach, and entitled the contractor to prospective profits for work undone up to the amount of his bid, and no more. A retrial of this case will doubtless develop the necessary facts suggested, and made necessary to the record for a proper disposition of the claim. Section 10 of article 7 of the constitution cannot here be invoked to give legality to the contracts made under the $9,000,000 act. There does not appear to have been any money in the treasury applicable to the improvements contemplated, nor did the legislature appropriate any money from the treasury. The legislature might levy a tax and appropriate money for improvements contemplated to be made, but this clause does not authorize the creation of an indebtedness, nor the raising of money to pay an unauthorized indebtedness; otherwise the limitation of section 4 of this article of the constitution might be made wholly inoperative. Our conclusion that the contract has been abandoned on the part of the state entitles the claimant to a judgment for money conceded to be due for the work actually done, and for the sum deposited as security for performance of the contract. And if the facts shall prove to be what has been suggested that they really are, viz., that the aggregate of the contracts, upon their face, as shown by the estimates and bids, was not in excess of the $9,000,000 voted, the plaintiff may be entitled to such damages as he can show he has suffered by reason of the abandonment on the part of the state before the sum of $98,760, the amount of plaintiff's bid on the estimate presented; was exhausted. The judgment of the court of claims is reversed, with costs, and a new trial before the court of claims is directed. All concur. 78 N.Y.S.-59 and 112 New York State Reporter In re MILLER'S ESTATE. (Supreme Court, Appellate Division, Second Department. December 2, 1902) 1. PRESUMPTIONS-INSTRUMENTS BEARING Different DateS. Instruments executed on different dates are presumed to be separate and distinct, and not part of the same transaction. 2. TRANSFER TAX-PROPERTY SUBJECT-BURDEN OF PROOF. The state has the burden of proving that property is subject to the transfer tax. 8. CONTRACT-CONSIDERATIONS-AGREEMENT OF MARRIAGE. An agreement of marriage is a valid consideration for a transfer of property. 4. TRANSFER TAX-PROPERTY SUBJECT. A man executed an antenuptial agreement whereby he transferred to his intended wife certain certificates of stock. The next day, "in consideration of the intended intermarriage," she transferred the same stock back to him as trustee, to hold subject to her approval, and to "apply to the mutual use of the parties the interest and income arising therefrom during the joint lives of said parties." The agreement further provided that in case the wife should die first the property should become the absolute property of the husband, and, if the husband died first, it should revert to the wife. The husband died eight years thereafter: his will, which was dated about one year before his death, reciting that he reaffirmed the said transfer, "and do give and bequeath all the right. title, and interest I may have, if any, in and to the said stock. * to my said wife." Held not to constitute a gift to the wife "in contemplation of death," and therefore not to be subject to the transfer tax imposed by section 220, subsec. 3, of the tax law (Laws 1896, c. 9081. Appeal from surrogate's court, Dutchess county. In the matter of the estate of Charles Miller, deceased. From a decree of the surrogate (75 N. Y. Supp. 929) fixing a tax on 2,000 shares of stock mentioned in the second clause of the decedent's will, Gertrude B. Miller, the claimant, appeals. Reversed. Argued before GOODRICH, P. J., and BARTLETT, JENKS, WOODWARD, and HIRSCHBERG, JJ. Frederick Kellogg, for appellant. Wm. Morgan Lee, for respondent state comptroller. GOODRICH, P. J. The surrogate of Dutchess made an order adjudging that a transfer of stock in an Illinois corporation by the testator, Charles Miller, to Gertrude B. Tefft, was made in contemplation of his death, and that the stock or its equivalent is subject to the payment of the tax imposed by section 220 of the tax law (chapter 908, Laws 1896), under the third subsection, reading: "(3) When the transfer is of property made by a resident or by a nonresident, when such nonresident's property is within this state. by deed. grant, bargain, sale or gift made in contemplation of the death of the grantor, vendor or donor, or intended to take effect, in possession or enjoyment, at or after such death. The facts out of which this controversy arises are practically undisputed. On April 7, 1893, Miller made an antenuptial written agreement, reciting his intended marriage with Miss Tefft, and his desire to make pecuniary provision for her, and providing that in consid 13. See Contracts, vol. 11, Cent. Dig. § 239. |