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Engin. Library
774
/5.5"
, W//
THE MUNICIPAL ENGINEERS
OF THE CITY OF NEW YORK
Paper No. 17.
THE ENGINEER’S FAULT.
BY JOHN CASSAN WAIT,” M. C. E., L.L. B., M. A.M. Soc. C. E.,
Member of the Society.
PRESENTED APRIL 26, 1905.
-
I have divided my lecture into three general divisions:
I.—The Engineer's Status.
II.-Projection, Authorization and Construction of Public Im-
- . | | ... . Orovements.
* * * * * * * III.-Settlement of Account between Parties, including Suit
land Duties as a Witness.
I.—THE ENGINEER’s STATUs.
“The Engineer's Fault” is perhaps to the engineering profession
a significant title and one which might be enlarged upon to the un-
ſh appiness of engineers if the purpose of the author were to take up
and to point out the faults of individual engineers, or if the faults of
any particular engineer were brought directly to his attention, and
especially in a public address. This is not the intention, and what-
ever may be said this evening should be taken to apply to nobody in
º articular, but to everybody in general.
. . . . . . . . . | Some things, no doubt, engineers are responsible for—many of
- the good and useful things of this world; but they will hardly claim
. . . . ; * Counselor at Law, 220 Broadway, Manhattan, New York. Former Asst. Corpora-
. . . . . . . ion Counsel of the City of New York.
152544



2
to be paragons of perfection, and I believe will confess that they
have faults. In this address I desire to point out not only faults
for which the engineer is responsible, but faults with which he is
charged, whether responsible or not, and particularly those faults
which arise from the engineer's practice in conjunction with the
departments of the municipality, and more particularly with the
law department.
This evening I am presenting some observations and points
which have arisen during my employment by The City of New
York, and which seem to me might be of interest to the members
of this Society and perhaps of immediate benefit and profit to all, if
considered in the spirit of propriety in which they are présented.
If they are pointed or bring up matters which are or have been the
subject of newspaper notoriety, or if they contain allusions to mat-
ters which cause sensitiveness on the part of any members, I wish it
distinctly understood that they are not mentioned with any purpose
of giving unhappiness or calling attention to the shortcomings or
failures of any officers of The City of New York or any of its
departments or bureaus.
Members of the engineering profession have always been at fault.
They have been great mistake makers and they always will be. It
is the men who attempt who fail. The engineer is constantly
grappling with great forces. He is usually opposed to Nature. It
is his ingenuity against her forces. Here he seeks to resist her at-
tacks, there to harness her agencies. His are great efforts, to con-
quer great difficulties, to overcome obstacles and to put to use the
wastes of our Mother Earth. Should he make mistakes, shall he
be charged with fault?
Was it Smeaton’s fault that the Eddystone Light-house fell;
was it Hudson’s fault that our river did not afford a northeast pass-
age; was it Tindenthal’s fault that the river is not bridged; was it
Perry’s fault that he did not reach the North Pole, and is it the
engineer's fault that the English Channel is not tunneled, that
Panama is not canaled, or that Pompeii has not been excavated?
IEngineers make every effort to avoid mistakes, to meet every
occasion that can arise, and to keep themselves above the suspicion
of being at fault. To this end they not only seek to acquire what
is strictly necessary to their profession, but they have invaded many
$
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3
other fields, that of the physician in sanitary work, the chemist in
mining and milling, the architect in industrial design, the lawyer
in the preparation of deeds, contracts and in promoting enterprises.
Some of our engineers are masters of the essentials of half a
dozen professions, and they practice them, too. They are eternally
in search of the fountain of wisdom, and this effort of members re-
minds one of the search of Ponce de Leon for the Fountain of
Youth.
The engineer reminds one of the Japanese explorer who be-
came aged, like de Leon, and sought the Fountain of Youth. To
this end he took up his residence at the edge of a dense forest, where
he lived with his wife. It was his habit to make excursions into the
forest to study nature and to enjoy nature's creations. One day he
followed a tiny rivulet and, coming to a spring, knelt down for a
drink and then rested a few moments. Presently he stooped to
drink again, when another's face was reflected in the water as if a
stranger was looking over his shoulder. He looked behind and
about him, but no one was there. He again stooped to drink and
the face was still there, but a closer study of it revealed to
him the face of his manhood, full, firm and joyous. He had at last
discovered the Fountain of Youth.
In his joy he hastened to his life's companion, but she knew him
not until he explained, when they both hurried to the fountain of
perpetuál youth. The wife arrived quite breathless and exhausted
from the exertion of keeping up with her youthful consort, and,
womanlike, prayed a little delay to recover her breath and to pre-
pare for the momentous occasion. It would not do for a youthful
girl to be wearing the weeds of old age. She should have youthful
raiment, a fig leaf and some roses; so the gallant husband hastened
away to find her a leaf and some flowers. After a while he returned
to the Spring, but the wife was not there, though part of her gar-
ments. “Oh,” thought the sage, “she has drank and, like a buxom
lass, has hidden in the thicket to coquet with me; I will find her.”
He searched the spring and the adjacent brush, but without avail,
and with deep sorrow started for home. He had not gone far when
in the thicket he heard a weird cry and hastened to it. There he
discovered a tiny baby, while beside it was a half shell of a gourd,
emptied. Taking the child tenderly in his arms, he walked along the
4
path until a gleam of sunshine lighted its face, and halting there,
traced in it the features of his wife. She had overdrunk at the
Fountain of Youth and it had done its work.
Do not expand your profession too broadly lest you spread the
gray matter so thin that your work shall suffer. One man’s work
cannot spread over too many fields. Remember the woman; drink
not too deeply.
Some may be inclined to apply this consistently to myself, but
in defence I may say that I have never been out of the engineering
profession. My practice in the law is chiefly in construction work,
public improvements and municipal law, which is Engineering.
I would not be justified in omitting some mention of the en-
gineer's status in his department. The engineer is the mainstay
and the back-bone of a department. He ought to be. Each new
administration brings new and unfamiliar, if not ignorant, heads
of departments. In some departments he is not only the engineer
in name and reality, but he is the administrative, the legal and some-
times, I am led to believe, the political adviser of the head of his
department. In thus speaking I do not need to except even the
Finance Department. The confidence exhibited by Comptrollers in
the Engineering Bureau of the Finance Department is, I believe,
almost unparalleled, and something to be very proud of. I can
speak with almost equal praise of the engineers of the Board of
Estimate and Apportionment, and, I think, of the Borough Presi-
dents’ offices. The other departments are perhaps equally deserving,
but I have not been so cognizant of their influence. It is sometimes
annoying to the legal department of the city to have engineers of
the Finance Department quote the law upon any subject to Assistant
Corporation Counsels. Outside of the joke, the serious aspect of
the case is that the engineers are frequently correct.
The wonder is that engineers have not the same persuasion as
to their real merit and value in dollars and cents, and that their
salaries are not commensurate with their services and the confidence
reposed in them. The engineer's fault is that he is willing to accept
confidence and responsibility in part payment of his services, in lieu
of gold. At the end of the year he is likely to complain that it does
not pay his house rent and provision bills. -
On this subject much might be said, but my question is, whose
5.
fault is it? Is it any one's fault in particular? And I fancy I
can hear the rank and file of the Society say that it certainly cannot
-be charged to us. I quite agree with you that the fault is higher
up, when members of our profession who are the heads of important
commissions and receive $10,000 to $12,000 per year for only a part
of their time, and who, with their associates, assistants and sub-
ordinates, have their own expenses paid out of the public treasury,
and whose recommendations are law, recommend that the rank and
file of their bureaus of competent engineers shall receive salaries of
from $1200 to $1800 per annum. The fault is apparent.
Personally, I am delighted to see the services of any engineer
appreciated and rewarded, but I feel and believe that it should be
distributed along down the line and not remain at the head, and
members of an honorable profession who place the value of their
own services at so high a figure might, it would seem, with good
grace, consider that their associates and the rank and file of their
employees must live as well.
The fault may be higher up, but why should the rank and file
part with their services at half or third price? Do you not your-
selves put a price upon your labor and services when you accept and
consent to work for laborers' wages? Is not the fault your own, in
part at least?
The engineer has not to contend with title and guaranty com-
panies, indemnity companies, corporation companies, collection
agencies, patent and trade-mark agencies, like the Scientific Ameri-
can and the legal aid societies, which rob the legal profession of large
branches of its legitimate practice. So far the practice of engineer-
ing is comparatively unimpaired by professional corporations, but I
can see in the existence of the testing companies and in the monopo-
listic manufacturing companies that destructive influence will be
wrought to the engineer’s professional work. Few of you engaged
in municipal engineering perhaps realize the effect of these, but their
influence is far-reaching and very damaging to professional success,
or its existence even, not only to civil engineers, but to the several
branches of industrial engineering. This may be charged chiefly
to the tendencies of American business methods. The avowed pur-
pose is to eliminate the middleman and the small operator and to
deal directly with the purchaser or consumer, and to provide or sell
6
finished structures or plants erected in place, thus dispensing with
professional engineers, lawyers and ministers even. This applies
especially to the great bridge companies, the great steel companies,
the great electrical manufacturing companies, and generally to
combinations for the manufacture of pumping and refrigerating
plants, railroad motive power, rolling stock and others too numerous
to mention. .
Having a monopoly of the raw materials and of the finished
product, these great corporations have it within their power to be-
come worse than the slave-holders of 1860, as employers. Being a
law unto themselves, they are invulnerable to the attacks of lawyers,
exercising the whip hand over contractors and consumers who dare
to litigate disputed claims. Being invulnerable to attack, they have
little fear of litigation and no cause for remorse. There is, therefore,
less need for the prayers of the saintly. -
The result of all this is that our engineers are becoming special-
ists of the factories and shops and operators, the employees of
erectors and foundation specialists, or they remain draftsmen and
waged employees of the great manufacturing concerns. Our lawyers
are daily becoming more and more counsellors instead of advocates,
and our ministers missionaries instead of pastors of flocks. Is the
picture too strong, too much light and shade? Are the colors too
bright? Is it the fault of the few men—engineers—more ambitious
to serve Mammon than their fellowmen?
II-PROJECTION, AUTHORIZATION AND CoNSTRUCTION of PUBLIC
IMPROVEMENTs.
Public improvements of a municipality are created and accom-
plished by successive stages known and described in different circles
by different terms, some more specific than others. I have adopted
terms and subdivisions for this lecture which I believe are familiar
in the engineering profession. * ,
Public improvements are first projected or promoted, sometimes
by engineers and sometimes by politicians, real estate men or by
public-spirited citizens or organizations of citizens. Secondly come
the preliminaries or preparations for such work, which include
suitable legislation by the Legislature, the Municipal Assembly,
Board of Estimate and Apportionment or head of department neces-
7
sary to authorize the improvement, including the appropriation.
Thirdly, come the operations preliminary to construction, which are
not only prosecuted by the engineering bureau, but by the law de-
partment, in instituting and completing the necessary condemnation
proceedings. Fourthly, the necessary preliminaries to a contract
obligation, viz., the advertisement, opening of bids and award of
contract, also the preparation of the contract and specifications and
the establishment of a standard of comparison.
Fifthly, the contract, which should include many essentials and
some non-essentials to the successful undertaking and erection and
completion of the public improvement, most important of which are
a precise description of the work to be undertaken and numerous
conditions precedent and requirements as to the erection and com-
pletion. These include the time of performance, liquidated damages
for delay or bonus for early completion, provisions for payment, in-
demnity clauses, clauses required by legislative enactments, pro-
visions for conditions anticipated, arbitration clauses and provisions
to avoid accident, clauses to limit sub-letting and assignment, and
others depending upon the particular work or the conditions pre-
sented; the specifications describing the work, the surety for the per- º
formance by the contractor, etc. -
The specifications are peculiarly within the province of the en-
gineer, and I will not take time here to discuss them, except to sug-
gest to engineers that the specifications should not repeat the terms
of the contract as above enumerated; that the best practice requires
that the specifications should define the work and materials compris-
ing the structure. ...”
Projection.—The projecting of public enterprises is something
that engineers have little to do with generally. The initial steps
are usually mushroom-like in their creation, and the result of con-
ditions. In municipal work, probably, the real estate agents and
owners initiate the greater number. They, with the aid of poli-
ticians, secure petitions and legislation recommending or authoriz-
ing public projects. Sometimes such efforts result in a struggle
between conflicting interests. This struggle varies from that be-
tween neighbors as to which man's house shall have the street lamp,
to such struggles as for many years deferred the construction of our
subway, the Panama Canal and, locally, the Bronx railways. It
8
may be a struggle for the profits of construction or of operation; it
may be railroad interests against ferry or shipping interests; or it
may be a struggle between several transportation interests, as that
now going on before the Rapid Transit Commission, during which
time the public suffer. -
It is when a happy combination of financial, public, personal
and relationship interests—“a community of interests”—can be
effected or compromised, as existed in the city’s latest and largest
undertaking, that results are at last realized and the public gets
long-promised relief.
These conditions and manipulations are not, with a few excep-
tions, the work of the engineer. Sometimes commissioners are ap-
pointed to investigate a probable source of water supply, or possible
routes of transportation, but they are exceptional. We will not,
therefore, dwell upon the projection of work. Not being the work
of the engineer, he is not chargeable with fault.
Authorization.—The authorization of work usually rests with the
law-giving power of a government, either with Congress, the Legis-
lature, the Board of Aldermen, or pursuant to such authority as
may be contained in the City's Constitution—the Charter—by the
Board of Estimate and Apportionment and the local boards. With
these the members of this Society have little to do except to make
preliminary surveys and an estimate of the cost of the improvement.
I will not, therefore, dwell upon this subdivision.
Operations Preliminary to Construction.—This requires the com-
bined labors of the engineering and law department and includes
preliminary surveys, the defining and recording of property required
for the improvement and of the property rights, incorporeal as well as
corporeal, that will be appropriated or destroyed or diminished. Upop
this subject the author has prepared a 700-page volume, to which he
refers. It is here that the lawyer and the engineer should work to-
gether and should express and exchange their respective views.
They need the assistance of each other in presenting and explaining
the law of property rights and the laws of Nature, and their relations
one to the other; the results that may be anticipated from the acts
of Nature and the interpretation of those acts by our courts as
affecting rights of neighbors in rem and in personam.
Preliminaries to Contract.—It is now that the engineer takes
9
matters in hand. The preparation of the estimate of quantities re-
quires extended surveys, borings, test-pits and examinations as to
grades, conditions past, present and future, the discovery of Nature's
hidden secrets, of subterranean and submarine sands, faults and
ledges. It requires a study of materials, processes and designs and
the final or conclusive adoption of those which are most suitable.
It requires that the improvement and its parts and members and
materials, and the processes by which results are to be attained, be
specifically described. It requires that a standard of comparison be
established, by which bids may be submitted and compared. This
should precede the drafting of the contract, in order that its terms
and conditions may be applied to the subject matter thereof. In
this work great care should be exercised, and when done it should
receive the unqualified endorsement of the engineer. It should be a
careful statement of what has been done, what was discovered, and
of the results obtained.
A failure to do these things is most prolific of law suits and
litigation, and occasions much controversy between engineers and
contractors, especially when the preliminary investigation made by
the engineer is subsequently disowned by him. I refer to the en-
gineer's investigation to determine the character of the sub-stratum
and its bearing capacity for structures, which includes soundings,
borings, test-pits and other operations adopted by the engineer to
ascertain the character of excavations or of sub-stratum and the
expense of excavating the same, or its capacity to sustain loads or
their impenetrability to water or other liquids. Engineers spend
months in making investigations of this character and then they
disclaim any responsibility for the results thereof and deny that
they know anything whatever about the conditions prevailing at the
site, but they do expect or require a contractor in a few days, or at
most a couple of weeks, to conduct experiments and make such in-
vestigations as will enable him to stake his entire fortune upon them.
Is not this the engineer's fault 2. *
Who is best able to assume the risks or to insure the stability of
work erected upon such a site? The municipality which has con-
ducted most extended investigation, or the contractor who has made
none? Examples are indeed numerous. They have occurred on our
New Croton Dam, dry-docks, in the improvements at Annapolis,
on the Erie Canal, and in nearly all government work.
10
I had occasion a short time ago to read a contract and specifica-
tions as counsel and to pass upon it. The specifications recited that
the City Engineer had investigated the sub-strata and knew it to be
substantially as represented; that if it were not so the city would
make good the contractor's loss and any damages sustained. This
is extraordinary. This is the first case that has ever come under
my observation.
It is truly the most economical practice. It brings the bids to a
standard of comparison. It gives to the City or Government the
benefit and advantage of all the money it has expended in pre-
liminary investigation. It promotes engineering practice and saves
contractors from disaster and ruin. -
No one thing contributes more to the disaffection between con-
tractors and engineers and to righteous indignation of the former
than the disavowal of results of the engineer's investigations.
Is it the engineer's fault? The clause is no doubt the creation
of the Law Department, but, on the other hand, it is counselled by
the engineer and no doubt is a safeguard to his professional repu-
tation, and an assurance which most engineers are very willing to
adopt to save themselves from criticism and discharge in case of
reckless or indifferent work or insufficient care in making the in-
vestigation. -
I have sometimes wondered if such safeguard stipulation were
kept in use so that an engineer might misrepresent the condition of
things, giving to favorite contractors the true condition of affairs,
thus enabling him to more successfully compete and to secure the
award and contract. How easily this could be done every one in
this Society knows.
The abolition of this clause, this disclaimer of an engineer's pro-
fessional work, is one thing that I had hoped to correct before leav-
ing the Corporation Counsel’s office. I am fully convinced that it
is wrongful and against the interests of all parties concerned, ex-
cept perhaps the politician and his favorite contractor. It will be
very difficult to do this, because anything that affords personal pro-
tection to an engineer and safeguards dire results from his errors
and neglect will be difficult to eliminate, however unjust to the con-
tractor or expensive to the municipality. Moreover, the Law De-
partment feels a substantial judgment against the City, when it is
11
#
not cognizant of the enormous saving to the City resulting from in-
telligent bids for public works. With the engineer and the Law
Department in favor of the clause, there is little hope for the public
treasury or the contractor.
Under the topic of “specifications and plans” there is one subject
which I feel it proper to discuss and which may properly come under
the subject of the “engineer's fault” as against the “contractor's
fault.” I now refer to insufficient plans and specifications as
against defective workmanship. The engineer, in his desire to keep
up with the rapid industrial progress now developing and to adopt
every new and improved device of construction and every improved
| class of material, sometimes permits his zeal to exceed his dis-
cretion. This occurs when the engineer adopts materials or processes
of construction without a thorough investigation and test of their
qualities and their durability.
. . I do not think that the engineering profession is as culpable in
this particular as are architects as a class, but misfortunes do occur
in consequence of the failure of the engineer to take proper and
reasonable precautions. This results in experimentation on the
part of the engineer, and usually at the expense of the contractor.
The engineer, not having the power to use or appropriate the funds
of the municipality for purposes of experimentation, and not being,
therefore, authorized to certify work that has been done and after-
wards condemned, the contractor is left to foot the bill without
remuneration from the municipality.
A like situation arises where the plans or designs of the engineer
are insufficient and where unwarranted weaknesses develop in the
structure, or even where the ultimate completion of the public im-
provement is prevented.
If the site of the proposed improvement has not been sufficiently
examined and developed to reveal the conditions existing and the
character of the sub-strata, as for foundations, and the structure
fails, then the question arises whether the failure of the structure is
due to defective plans or to insufficient investigation in the pre-
liminary work. Plans designed for conditions that do not prevail
are insufficient for the location where the structure is ordered built,
though they might be entirely sufficient at some other site, and an
engineer may reasonably be charged with defective designs for a
12
structure to be built upon an insecure site, as well as for the failure
to make proper and sufficient investigation to determine the char-
acter of the sub-strata upon which the structure is to rest.
If a structure fail from inherent defects in design, and the
builder is by his contract required to follow the engineer's plans
and specifications, it would be manifestly unjust to hold the builder
responsible for the failure, unless, indeed, the engineer seeks to make
the builder an insurer of his professional skill and designs, thus
confessing the superiority of the layman over the professional en-
gineer or architect. - *
This is the effect of some specifications by architects, and in
some instances of engineers. It may be excused in cases where the
builder is a specialist in his line, as the American Bridge Company
in steel structures, the National Pump Company in hydraulic ma-
chinery, or the Westinghouse and General Electric Companies in
electrical plants; but in such cases, were it not better for engineers
to designate the site or place for the works, the capacity, efficiency
or duty of the plant or structure as the work it shall perform brthe
loads it shall carry, and leave the specifications and plans to the
bidder, being careful to describe explicitly the tests of efficiency to
be required? Such a practice would relieve the engineer from the
charge of adopting certain manufacturers' plans and specifications.
and features, and of making an effort to stifle competition by limit-
ing the bids to one or a few bidders. The courts are keenly alive to
this situation and they are likely to hold that a construction com-
pany is not an insurance company and that however many so-called
guarantees—more properly called warranties—the engineer injects
into his specification, such as to warrant the cellar, sewer or reser-
voir to be water-tight, or the structure to carry certain loads, or
that the structure shall be stable and resist the action of the winds,
waves, tides and floods—they do not constitute a warranty where
the contract specifies the dimensions, design and members of the
structure and the character of materials, the process of mixing and
placing. A warranty by a builder as to results implies that he shall
have some say as to the design and methods of erection.
Of this practice of adopting plans and specifications of special-
ists, who are the manufacturers of special designs or character of.
structures, machines or plants, especially in municipal practice, too
13
much cannot be said in condemnation. It leads to personal con-
troversy and litigation. The efforts of bridge companies, first one
and then another, to control the erection of our great bridges, to the
exclusion of competitors, has resulted in not only unenviable news-
paper notoriety, but in dissensions in our profession, great delay in
our public improvements and personal bitterness detrimental to the
profession. The effort of certain fire-proofing interests allied to
strong political factors to control the Building Department; the
attempt to specify certain patented, sewer pipes; certain acid or
basic steel; a certain style 6f library stacks; marble or granite from
certain quarries; certain kinds of pavement; certain brands of
cement, plaster or even of crushed stone and sand from a certain
locality; certain types of engines, electric generators, refrigerating,
steam heating and laundry plants; certain crushing plants, road
rollers, sprinklers, etc., have aroused the indignation of competing
trade and have been enjoined by our courts. -
It may be accepted that attempts to favor particular manufac-
turers will always arouse controversy in competitors, and that every
device, plant and class of materials will have its advocates, and that
trade will be aggressive and unscrupulous in presenting its wares.
Though the engineer justify his preference, by proving the subject
of his choice better, stronger and more efficient, he cannot justify
illegal acts or illegal practices., . He should meet the situation by
honest and lawful methods, thus saving his own self-respect and
keeping within the law.
The results desired may be secured by specifying conditions and
tests that must be met, thus encouraging manufacturers to meet the
conditions by improving their goods, machines and plants and creat-
ing healthy progress in the industrial arts. By all means, the en-
gineer should avoid the imputation of being owned by any particular
interests, local or outside. The politician’s policy of local patron-
age is a dangerous one when the charter and ordinances forbid it.
This situation presents another one for a diplomat-engineer.
If the local manufacturer or builder, having the advantages of
proximity to the work, knowledge of conditions, acquaintance with
the labor and material market, and a thousand other things, cannot
compete with the outsider, then something is the matter with the
local bidder. He needs no inside information nor favoritism; it is
14
more likely that some one other than the contractor is being benefited.
Time Limit.—Another element of this subdivision is that of the
period of time fixed for the construction and completion of the im-
provement. This is another thing prolific of complaint, controversy
and litigation, especially when a substantial sum is named as a
penalty or liquidated damages for delay.
Probably no one thing is made the subject of greater abuse in
governmental work, and especially right here in New York. It has
become so flagrant that the courts almost uniformly refuse to en-
force stringent contract clauses for liquidated damages, and the
time limit of a contract with the city has become virtually “a dead
letter.” Whether from intrigue and connivance with favorite con-
tractors, proteges or politicians, from lack of practical experience
and knowledge of engineers and architects, or from sheer negligence,
I do not need to inquire, but I do declare that something should be
done to rectify this evil. Without doubt many things contribute to
the determination of this period of time. The engineer does not
always have the final determination of it. His recommendations
are sometimes ignored and the time arbitrarily fixed by somebody
else. The effect, however, is apparent. Outside bidders, not as-
sured that the time limit will not be enforced, or that they may con-
tinue their work into a favorable season or over two seasons, cannot
compete with contractors who have that assurance or who feel that
they will get indulgences. If the time be short, the assured gets the
contract, and the more conservative and careful bidder, the business
man, loses to the gambler or politician, the assured.
This, however, is but one phase of the time limit, when not en-
forced. It is the City and the Public that get the burden and the
disagreeable end of the bargain. Was there ever such intolerable
delay experienced as has characterized the Elm Street improve-
ment, where the property owners, from one end to the other, have
been nearly bankrupted by the tying up of their property for more
than eight years? What an immediate crying need was declared
for this thoroughfare in 1894 or 1895! In 1899 a committee repre-
senting these taxpayers came to my office to get me to take up the
matter and get relief from a. most burdensome condition. Six
years later, only very recently, have they secured ingress and egress
over this thoroughfare, Was this the engineer's fault? Nearly ten
years' deprival of their property, besides being assessed heavily for
the public improvements. Talk about Roman oppression | You
do not need to read Roman history. -
As aggravating instances occurred in our Rapid Transit con-
struction, which contributed so much to the Elm Street condition.
The Subway contract provided that openings of streets should con-
tinue only for thirty days, except by consent of the abutting
owners. Yet those Subway execavations were opened and main-
tained open for periods ranging from six months to twenty months,
and the streets encumbered, for even longer periods, to the destruc-
tion of business and property interests, to say nothing of incon-
venience. That this was ". necessary may be gravely doubted. It
was avoided in some places where influence would not tolerate it. It
is not found necessary in lower Broadway, as now being constructed.
Was it not the engineer's fault? Was it to anybody's great
benefit, was that benefit commensurate with the damage, and can it
in any way be justified? -
These are two of many examples. We have the Hall of Records,
the Blackwell's Island Bridge, the new East River Bridge and its
approaches, including Delancey Street, the three great reservoirs,
that are each years past the times set for their completion, some of
them at a cost greatly exceeding the original contract price. Had
other bidders known they could have taken their own time for the
works, how much cheaper would they have been undertaken?
Nobody knows better than the author that part of the delay to
some of these works has been due to conditions not within the con-
trol of the engineer or the contractor, but a great deal of it is wholly
inexcusable and the result of the grossest indulgence.
The consequences of this are far-reaching. It is not only the
inconvenience to the public, the interruption of traffic, the destruc-
tion of the business and property interests of abutting owners, but
it clouds the development and progress of the whole community to
be benefited by a large public improvement and defers a far-reaching
benefit for years, while during that time the property owners of the
whole district are deprived of the use of their money collected in
taxes or assessments.
Nor is this all. If, as is frequently the case, the public work has
been awarded to several contractors and the completion of some
16
parts of the work depends upon that of others, then some con-
tractors suffer very great loss, to the favoring of others. The New
East River Bridge affords a mischievous example of this, where the
work of the contractors for the Anchorage was suspended for five
and one-half years, during which time the time limits of other con-
tractors were several times extended on no apparent excuse, but as
indulgences. During this time the plant and temporary works of
the anchorage contractor had deteriorated and had to be renewed,
the price of materials and labor had greatly increased, and several
of the engineers and contractors, their superintendents and fore- .
men, were dead, and the prospective profits were multiplied into
losses. Were the engineers who recommended the extensions at
fault? Will the City make good such losses? Not if it can avoid it.
This is an instance of the evil results of dividing the responsi-
bility of erecting and completing a public building or structure
among several contractors. It is a practice usually attended with
delay, shifted responsibility and subsequent controversy.
Complete Work.--Another feature to be observed, essential to
, the success of a public improvement, is to have the specifications
and plans describe and show a complete structure. A failure to do
this occasions delay and brings on all the trouble and conflict arising
from having several contractors on the job. Nor is this all; it
leads to the unhappy conditions that exist on so many of the great
public works at present. Thus, great bridges are planned; they are
erected after years of delay, and then no thoroughfares or means of
transportation are provided by which to convey the traffic. Great
piers and abutments are erected, to stand for years awaiting the
superstructure. Park property is acquired; buildings and structures
are torn down and the land allowed to lie unimproved for years there.
after. Great reservoirs are planned and started under contract with-
out provision for auxiliary structures, which are built long after,
when they might have been started contemporaneously with the
principal structures. These conditions are not usually the fault of
the engineer, but the fault of the power that authorized the work
and made appropriation therefor; or, rather, that fails to authorize
and appropriate. However, the engineer should exercise his per-
suasion to have the contract for a complete work.
A further reason why the specifications should include all the
1?
work required to erect and operate a structure is that the Charter
and almost every act of the Legislature limits the additional work
that may be done without advertisement and public letting to $1,000.
This being so, any work omitted may bring other and new con-
tractors upon the work to breed trouble and to divide the responsi-
bility. Sometimes this limitation is ignored, as has been done under
the last two administrations of the City Government, when changes
and alterations and additions were made “contra eacpressam legem.”
The extent to which this has been carried of late is the extreme.
Additions and excess work have been ordered on the large bridges in
values of hundreds of thousands of dollars, and on our water-supply
reservoirs in amounts of millions of dollars. This practice is
wholly unwarranted and is certain to lead to mischief. That it has
been done may not be the engineer’s fault, but it could have been
avoided, at least in the greater part. ;
Liquidated Damages.—There is a popular notion that liquidate
damages cannot be assessed for delay; and that is pretty nearly cor-
rect with a municipal corporation. The right to retain a sum as
liquidated damages does not, however, as is supposed, depend in
any way upon the bonus offered or upon the fact that any bonus
was offered. The difficulty in recovering liquidated damages arises
from the trouble of showing that the city has suffered actual damages
or anything more than inconvenience. The policy of the law forbids
the recovery of any damages but the actual damages.
Award of Contract.—Eollowing the advertisement is the award,
which should not be made precipitately. An offer, which a bid is,
when accepted unconditionally constitutes a contract; hence the
necessity for deliberate action when accepting a bid. The public
officer should be assured that all the ceremonies required by law
have been performed and the letter of the law complied with, also
that the appropriation is sufficient, for the binding effect of all con-
tracts with the city, except those to be paid in whole or in part by
assessment, is postponed until the Comptroller certifies that the
appropriation is sufficient to meet the expense thereof. -
Formal Contract.—Rollowing the award is the execution of the
formal contract, containing many clauses. I cannot discuss them
all, but will select those about which there is and will be difficulty.
Many clauses are required to be inserted by the ordinances, the
18
Charter and Legislature. Of these there were several labor
law clauses—one as to hours of labor, another as to the pay-
ment of the prevailing rate, one as to the employment of citizens
only, one as to using stone cut within the limits of the State. All
are now declared illegal and unconstitutional, after eight years of
folly on the part of city officials, intolerant insolence on the part of
labor leaders, the usual losses and damages to contractors, and the
wicked waste of public funds. There was never any doubt but that
the law was unconstitutional. Every layman contractor felt it.
The first opinion I wrote upon entering the Corporation Coun-
sel’s office, in 1900, declared the labor law unconstitutional, and the
opinion was backed up by a well-prepared digest of decisions to Sup-
port it. It brought me my first lesson in municipal policy—the
opinion was quietly returned to me with the note, “This office is
committed to the labor law; opinions should be prepared and sub-
mitted accordingly.” When the Court of Appeals declared the labor
law unconstitutional, I had the satisfaction of seeing it based upon
the grounds of my first opinion. The decision of this court was not
enough. Only last spring the contractors of the city were treated
to another hold-up and many contracts were abrogated, even, to
satiate this bandit of walking delegates, for alleged violation
of the eight-hour law, and this after the Supreme Court, sitting in
Brooklyn, had declared the eight-hour law unconstitutional. Be-
sides this, contracts were made under the Low administration grant-
ing to contractors having large works with the city prices in excess
of those bid at public letting, in consideration of the contractors
complying with the eight-hour law, by which large sums of money
are now being disbursed, though the law is unconstitutional. Be it
to the credit of Brooklyn that its Borough President and its En-
gineer were the first to recognize the injustice of this law and to
unequivocally declare themselves in the belief that it was unconsti-
tutional and iniquitous, and to act accordingly. 3.
Assignments.-Another clause required to be inserted in our con-
tracts is that prescribed by Section 444, Laws 1897. This act forbids
the assignment of any contract or of any money earned or unearned
under public contract, without the consent of public officers, etc. It
is as unreasonable as the labor law. It was first held to forbid the
assignment by a contractor of moneys earned. . The idea of denying
19
one's right to dispose of what is his own, or of his power to pay his
just debts with his just claims l’ It took a creditor's action to test
the law and to dispose of it. The courts, in their charity to the
Legislature, held that the law was only intended to prevent the sub-
letting of work to irresponsible or incompetent contractors, and to
make the public official the judge of their responsibility and com-
petence to undertake and do the work. **
Other clauses are those requiring the placing of lights and
guards; that the contractor shall indemnify the city from acci-
dents; that notice shall be given to gas, electric, water and trans-
portation companies before excavating around their lines; that
moneys may be retained to satisfy claims of laborers and materials
under the lien laws; that the contract shall not be binding until the
Comptroller shall certify, and other really quite essential clauses.
All these clauses are inserted in the language of the act or or-
dinance which requires them to be inserted, and many times have I
been required to revise and recast contracts (and at no small amount
of labor) that have been remodeled after the ideas and ideals of
members of this Society, who, being ambitious, enterprising and
progressive and having decided views of their own, have sought to
improve upon the language of the city contracts and to make them
express what is really meant.
Doubtless many of you have wondered at the name of the ad-
vertisement, which is characterized as Proposals for Bids or Esti-
mates. It should be called the Invitation to Bidders. The bid or
estimate should be called the bid or proposal. There are many other
misnomers. These come from using the language of the City
ordinances, and it would not be safe to change them. Hence the
disputes between the engineers and the Law Department. In the
same way the language of contract clauses, as those of arbitration,
liquidated damage and dismissal of the contractor, have been taken
from court decisions in which the language has been defined and
applied, and which construction the courts are reasonably bound to
follow, *
Ordinances—These matters recall that three years ago I pre-
pared and submitted to the Board of Aldermen a copy of ordinances
correcting this misapplication of terms. They were not, and so
far as I know have not been passed, and it may be interesting to
20
know that all the boroughs of this city are advertising public works
and awarding contracts under ordinances applicable to Manhattan
only, and that our Board of Aldermen is acting in contempt of the
Legislature of the State in failing, neglecting, and, I think I can
say, in refusing to pass general ordinances for the whole city, govern-
ing contracts for supplies and public improvements. The Supreme
Court would, in my opinion, be justified in granting a mandamus
requiring the Board of Aldermen to pass such ordinances and thus
Securing our contracts and assessments from attack for having been
illegally advertised and awarded. This subject is deserving of the
attention of every Borough President and head of department.
Will it be the engineer's fault if it continue? &
Abandonment Clause.—There are two clauses in our municipal
contracts that are iniquitous and of doubtful legality. One in the
abandonment or dismissal clause, which provides that if the city
take over and complete the work and there be any surplus of the
contract price over the actual cost to the city, that such surplus shall
be forfeited to the city, which shall be entitled to retain it, etc. I
have no doubt but that our courts would refuse to enforce such a
clause. It is inequitable and unjust and would never be favored
by our courts. During the Low administration it was by my own
persuasion directed to be stricken from the city contract, but I
notice it is still retained in some cases. On what ground I do not
know.
Suspension.—Another clause that is inequitable and unjust is
that reserving power to the city to suspend work for an indefinite
period. If the city suspend work, can it reasonably ask a contractor
to return and complete a structure when the labor and material
markets have greatly advanced during the suspension and to the
contractor's great loss? I think not. The period of suspension per-.
missible should be fixed at thirty or sixty days, or some limitation.
made. -
Patented Articles.—Another clause inserted pursuant to the
charter is that forbidding the purchase of patented articles or pave-
ments. This has been interpreted and applied by the Corporation
Counsel’s office to suit various conditions. To reconcile the opinions -
sent out from the office under different administrations would be a
difficult matter, or to reconcile them with the decisions of the courts.
21
In 1902 the Supreme Court held that armored concrete made with
expanded metal weighing 85 lb. per sq. ft. could not be specified.
It was shown that the patents on expanded metal had expired by
limitation, as had also the patents on the machines upon which it
was made, but that the requisite expanded metal, being of heavier
metal, was made on a larger machine involving certain patented
mechanical movements. The Supreme Court, in two cases in 1903,
enjoined and prohibited the execution of a contract and specification
calling for floor construction employing expanded metal weighing
85 lb. per 100 ft., and forbade the commencement or the prosecution
of the work under such specification. Neither of these cases was ap-
pealed by the city. The decisions are mischievous and would not, in
my opinion, be sustained by the higher courts.
If those decisions are good law and were applied generally to
purchases made by the city, they would prevent the purchase of the
most ordinary merchandise, including wire nails, boots, sugar and
almost every other commodity; yet, notwithstanding that this was
pointed out in the argument to the court, the decision was made and
the Fire Department enjoined as above described. -
Later it was held by the highest court that the city could not
purchase a patented bitulithic pavement. Again it was held that
the city could not purchase a patented water-meter. Yet, in view of
these decisions, it was held by the Law Department of the city that
the section of the charter was not violated by the purchase of a par-
ticular manufacture of library stack built under no less than five
patents, notice of infringement of which was sent to every com-
peting bidder. There you are, and if you cannot discover the
dividing line in the preparation of your specifications, then, of course,
it is the engineer's fault?
In 1902 a difference of opinion arose between members of the
Corporation Counsel's office as to how to meet the requirements of
this section of the charter. The position taken by the author and
by which patented bridges had been built by the Bridge Depart-
ment, and by which extensive pumping machinery the subject of
patents had been purchased, viz., by the city itself paying the
royalty to the patentee, was declared by the head of the Law De-
partment to be improper, and a new one adopted for patented pave-
ments and some other articles the subject of monopoly. The Ap-
22
pellate Court sustained the method adopted and contracts were pro-
vided accordingly for Warren's patent pavement, which the Court
of Appeals promptly declared to be not in accordance with the re-
quirements of the Charter. At the present Legislature an at-
tempt was made to amend the section, but without success. How
you gentlemen meet the situation now I am not advised, but I mis-
trust it is met in part by a less strict application of the charter
section. - "
Sometimes it would seem to depend upon the subject matter and
the parties in interest. I neglected to state in the case quoted
above that it was the Roebling system of floor construction against
the Expanded Metal system. Laws are enacted, without doubt, for
good and proper purposes, at least ostensibly, as it requires the fair-
minded members of the Legislature to pass them, but it does seem
frequently that they are two edged and sometimes sharpened at
both ends, and fall far short of their apparent purpose. This would
seem to be true of some of the contract restrictions mentioned.
While keeping out objectionable and monopolistic persons and
things, they securely intrench those which do get in, lawfully or
otherwise, or that secure by favor or exemption relief from them.
Indemnity Clause.—The indemnity clause is a burdensome one
to a contractor, notwithstanding the great relief afforded by the
casualty insurance companies. It usually provides that the Comp-
troller may retain such sum as in his opinion shall protect the city
from loss. Whether it be a property holder or a person injured, the
clause is used as a club to exact money from the contractor. By
filing a claim with the Comptroller, no matter whether meritorious
or otherwise, the person aggrieved can tie up the contractor’s
money in amount two to ten times the damage suffered, and without
incurring any responsibility whatever, and on the slightest pretext.
An example has arisen in the past few days in my own prac-
tice. One of my clients was paving one of the avenues of this
city and during the labor agitation was called upon to suspend the
work. The pavement had been taken up and the Belgium blocks
laid several inches below the finished grade of the asphalt. A
teamster driving over this depressed pavement was thrown from
the wagon, presumably from its striking a manhole frame, and
was killed. His executor having filed a claim with the city for
23
º the loss of .. the man's life, the Comptroller, under the said contract
clause, is withholding contractor's money. In such a case, the
contractor has the alternative of either leaving his money with
the Comptroller or bonding the claim by an instrument as tightly
drawn as the winding of a piece of modern artillery. If he be not
made a party to the suit he must depend upon the city or its agents
making a proper and vigorous defense and of footing the bill if not
successful. Now this is manifestly unjust and especially in the
- above case. : #
In the case cited, which is one of many, the contractor is
insured in a liability insurance company. By its policy he must
notify the company within twenty-four hours of the accident. The
accident occurred last August, the city received notice in Decem-
ber, and the contractor gets notice in April when he demands his
final payment for his work. Is this as it should be? Whose fault
is it? . - - -
Patent Rights Infringed.—Another provision of our contracts is
that which makes the contractor responsible for all infringement of
patents, etc. This might be made very burdensome if enforced in
some cases. How can it be justified in view of Section 1554 of the
Charter, forbidding the purchase of articles or pavements, the sub-
ject of patent right or proprietary ownership? Is the contractor
responsible for the infringement of processes or materials specified
by the contract, if his contract is illegal, being forbidden by said
section? -
Employment Contracts—This contract clause indemnifying the
city was embodied in the city’s contract of employment for en-
gineers and architects. As is well known, the architects always
insert in their contracts a clause declaring that the plans and speci-
fications are the property of the architect. That being so, they
must be the creation of the architect and he should be willing to
protect the city from suits for their infringing either the copy-
right or incorporeal right of others. Surely no other reason could
prompt the requirement that all drawings should be returned to the
architect, except to preserve the right to the incorporeal design em-
bodied and described. Likewise of the engineer.
The anxiety which that one clause aroused and the wire-pull-
ing which was made to have it and other clauses expunged were
24
interesting and amusing. Committees and delegations from the
American Institute of Architects visited the Corporation Counsel
to secure its withdrawal and I believe they succeeded. Not one
was willing to guaranty the originality of his designs, nor to pro-
tect the city from suits for infringements, contained in his own
plans. It’s different, you know, when these things are applied to
the party himself, who may be the author of them. I recall in
particular one engineer who raised special objection to this clause.
He had been called in as a specialist to design a municipal plant.
On being asked if he had himself designed the plant, he declared
in the affirmative. The plant had hardly been started when suits
for patent infringements were threatened by several patentees and
it became apparent that.this engineer had employed patent speci-
fications and drawings in the creation of his design and reasonably
should have anticipated infringement suits; hence his anxiety to
relieve himself from the onerous clause. However, the contract
approved by the engineer and the Law Department securely bound
the contractor to indemnify the city, and you may believe it put
him on the anxious seat. Was this the engineer's fault!
I may add that this idea of architects that they have inherent
rights in the designs incorporated in their drawings, after a struc-
ture has been erected, should be corrected. A recent decision by
our Appellate Division Court has disposed of the question. Build-
ing from them has been held a publication of the plans, destroying
common law rights in the creation.
It may be gravely doubted if that is what prompts many archi-
tects to require a contractor to surrender his plans, specifications,
contract and all written orders even. It savors very much of the
fox and a very probable desire to cover one's tracks and deeds; and
to deprive the contractor of his documentary evidence of what has
actually been done and taken place. A case recently came to my
attention where the architect demanded back all his letters and
correspondence as a condition of granting his final certificate.
These are faults of the architect. I have never had occasion to
attribute them to engineers.
Street Improvements.--Another clause in our contracts for
street improvements is that providing for the protection of existing-
structures, and sometimes for their removal and restoration, There
25
is not so much question as to the propriety or legal method of doing
this when the incumbrance is public and owned by the city as when
it is owned and operated under a franchise or by private com-
panies. There has been and is likely to be controversy between the
several Borough Presidents and the departments, especially that of
water supply and electricity, but the legal difficulties are not great.
It is a matter of diplomacy in handling heads of departments and
keeping the peace.
It is an annoying problem to municipal engineers to contend
with obstructions to municipal improvements, which occupy the
streets both above and beneath the surface. Telegraph and tele-
phone poles, elevated railways, street railway tracks, subways, con-
duits, water, gas and pneumatic pipes, are a constant source of
trouble to engineers in charge of street improvements. They have
been especially troublesome in Richmond, in The Bronx and in
Queens. They have led to considerable irritation in the several
departments of the city and between the Corporation Counsel's
Office and some of the departments. They have been the source of
special trouble between the Borough Presidents and the Water
Supply Department. I think that part of this affliction and trouble
may be attributed to the engineer's faults.
Streets are primarily for public travel and railways, water com-
panies, telegraph and telephone companies who occupy them are
there subject to the paramount right of the public to use the streets
for travel. If a public officer is required to change the grade, to
pave or to improve a street for public travel, such structures erected
and operated under franchises from the city to private parties must
give way to such street improvement. It has been customary to
require the contractor to protect, maintain and secure such struc-
tures during the improvement of such streets. It is very doubtful
if such additional cost of a street improvement or of a sewer can be
taxed against abutting property as part of the improvement, and it
makes an assessment for a public improvement vulnerable to attack
by abutting property owners to include such expense in street im-
provements to be paid for by assessment. Water pipes laid by the
city not being paid for by assessment are not subject to such attack,
but there has been bitter strife between the departments as to who
should pay for the taking up and relaying of water pipes when so
26
*
required by a street improvement, each department desiring to save
its own appropriation and to put the expense of such excavation
and relaying upon the Water Supply Department. Under Corpora-
tion Counsel Rives it was held that such expense should be met
by the department making the street improvement. Street rail-
ways, private water companies, etc., cannot, it is believed, require
the city to maintain their tracks during the improvement of the
street, and if after due notice such companies do not shore up, pro-
tect and preserve their structures, it is submitted that the Borough
President may either remove them without replacing or that he
may permit such structures to fall into the excavations, care being
taken, of course, to protect the lives, and limbs of the public. If
the companies do not protect their lines and they are damaged or
destroyed, it should not be charged to the fault of the engineer.
Changes and Alterations.—The subject of changes and altera-
tions should be mentioned briefly and this seems to be a proper
place to take it up. The conditions and necessities of work, fre-
quently require changes to be made. When changes are made, and
they increase the cost of the work to the contractor, he should be
compensated for such increased cost, and liberally too. Engineers
are generally agreed in that, but frequently they do not allow the
additional cost of alterations and they excuse themselves upon the
ground that they have granted and given to the contractor many
favors, omissions and deductions, which are more than equal to the
additional charges imposed upon him. This is not only a mis-
chievous position to take, but it is unwarranted and dangerous.
Usually the law will hold that where omissions, favors and deduc-
tions have been granted, they can not be offset against increased or
additional work required; unless, of course, they are the subject of
an express agreement by the contractor. All deductions and omis-
'sions should be as much the 'subject of a written agreement or
order as should the additions and extras made.
Written Orders.-Municipal contracts usually provide that no
extra or additional work or materials shall be paid for unless
authorized in writing and the price thereof agreed upon before the
work is undertaken. Where this clause is employed the engineer
should not require additional or extra work without giving and
granting such an order and it should be his purpose to insist that
27
such orders be made and filed. Nothing is more annoying or
detrimental to the reputation of the engineer than his postponing
his determination as to whether in his opinion certain work or
materials are extras. To refuse or neglect to determine this ques-
tion and to hold such accounts for extra work as a threatening
club over the heads of contractors is, to say the least, a serious
fault, and unfortunately it is a too frequent practice with engineers
and architects. It is not necessary that work be completed or that
successive monthly estimates be made before the question is deter-
mined whether or not the contractor is to receive extra compen-
sation for work that he is doing or has done. Such a course de-
prives the contractor of the benefit of this clause, as well as the
owner, and in most cases it turns out that the engineer has been
playing with the contractor without any intention of allowing
extra remuneration for such work, which leads to bad feeling and
bad repute. It is usually the engineer's fault.
For many years it has been an unwritten law that the Comp-
troller’s office would permit extra or excess work to an amount of
5 per cent. There is no ordinance or law permitting this, the
law holding expressly that any work necessary to do or com-
plete or perfect any job, or when any supply is insufficient
for any particular purpose, and when the several parts of
said work supplied, shall together involve the expenditure of more
than $1000, the same shall be by contract under such regulations
concerning it as shall be established by ordinance of the Board of
Aldermen, viz., by advertisement and public letting. If the 5%
of a contract price exceeds the $1000, then this practice is in con-
travention of the charter. Nevertheless in the contracts of 1903 a
clause was inserted limiting the aggregate price to be paid for extra
work and materials ordered in writing, to an amount not exceeding
5% of the contract price. This was done to meet what appeared to
be the exigencies of public work, but there is no authority for it
where the said 5% exceeds the sum of $1000. This is not the
engineer's fault, but the fault of the law department.
III.-SETTLEMENT OF ACCOUNT BETWEEN PARTIES, INCLUDING SUIT
AND DUTIES As A WITNESs.
Engineer an Arbitrator.—This presents the contract clause giv-
ing to the engineer or architect the determination of all questions
28.
in relation to said work and the construction thereof and of every
question which may arise relative to the execution of this contract
on the part of the contractor, and that his estimate and decision
shall be final and conclusive and a condition precedent to the right
of the contractor to receive any money under this contract, and in
some instances making the contractor's recovery subject to the
obtaining of the engineer's certificate, and limiting the amount to
be paid to the amount certified.
It is generally held that this clause confines the engineer's or
architect’s determination to questions arising in the work. It does
not authorize him to determine the construction of contract clauses,
nor the question as to whether there has been a breach of contract,
nor the amount of damages resulting therefrom, nor the amount
necessary to indemnify the city for losses suffered. It does not
give to the engineer the determination of what is extra work or
the amount of extra work, unless it be expressly so stipulated.
These clauses are not generally in good favor with the courts.
They are regarded as conditions precedent and as clauses stringent
and unreasonable. The courts are frequently aroused to jealousy
by the feeling that such clauses are used to oust the court of its
jurisdiction, and are then frequently declared to be void and of no
binding effect. Such cases are where they are drawn too stringent
or drastic and thus arouse the feelings of the Court that an injus-
tice has been done to the contractor. In most cases such a clause
is held to apply only to the manner, method, means and materials
by which the structure is accomplished, and which are within the
special knowledge and experience of the engineer or architect, and
this would seem to be the most reasonable interpretation. Such
a construction is borne out by the clauses which immediately follow
and which give to the engineer the power to inspect labor and mate-
rials or to reject and accept them and to require that defective
work or materials be removed and not used again upon the works.
Engineers as Arbitrators.-Engineers in performing the duties
imposed by these clauses should not forget that they are in effect
arbitrators between the City and the contractor. I appreciate that
it is difficult to conceive a man an arbitrator and in the employ of
one party to a contract, and that he is expected to be perfectly fair -
and unbiased with the contractor; but it is only upon the ground
29
that he can be and will be fair and equitable that this clause of our
contracts can be sustained. If it be shown than an engineer is
biased, prejudiced and not judicial in his determinations, then the
contract clause should fail and the engineer's determination should
be annulled just as much as any award made under any common
law arbitration. If the engineer be regarded as the agent of the
city, then the contract clause makes the city or its agent a judge of
its own case, which is contrary to the elementary principles of our
jurisprudence. A contract may not be drawn leaving to one party
the determination of questions affecting the rights of the other
party, and such contracts are universally held to be invalid.
What has been said should arouse the engineer to the responsi-
bilities of his position. He should feel and understand that he is
in a class by himself and not to be rated with political appointees
or with clerks, auditors or deputies even. That the engineer should
be attentive and conservative of the city’s interests, goes without
saying. That he is frequently the sole representative of the city
upon a piece of work and therefore the only one to protect the city
in its helplessness, he should fully understand. He also should
appreciate that while the city depends upon the engineer chiefly to
protect its rights and treasury, that the contractor is a person with
a good pair of eyes and a ravenous appetite. Yet this circumstance
does not require that the engineer should be the champion of the
city and the aggressor of the contractor. He may be firm, ob-
servant, a protector of the city’s rights, and yet do fairly by the
contractor. He is not reasonably required to gouge the contractor
to the profit of the city, nor is he justified in giving way to irrita-
tion and revengeful practices, because the contractor is sharp or
even unprincipled. An unprincipled contractor, or a thief even,
should be assured the protection of just laws.
I do not think that usually engineers sacrifice the respect and
confidence of contractors by being firm, determined and fair, and
it is my opinion that engineers and even municipal engineers have -
a reputation to maintain with contractors as well as with heads of
departments, not a reputation of favoritism to either side, but a
reputation of fair-mindedness, honesty and good judgment. If he
does not sustain it, it is his fault.
Litigation.—The public improvement having been projected,
30
authorized, contracted for and completed, the estimates made and
the accounts having been rendered and certified, there still follows
the sequel. By this I mean subsequent litigation. In this the
engineer who has had charge and who has been frequently a part of
the structure itself, is or should be the most important witness. It
is upon him the city must depend for protection of its rights and
its treasury, and it is here that a very important element of the
true value and importance of an engineer is shown. His duties
are not limited to the preliminary surveys, preparation of specifica-
tions, plans and the contract, and the supervision of the erection
of a structure, but he must also be prepared to protect the rights of
his employer in what may come after. This, I think, is perhaps the
weakest point of engineers, and it comes largely from their failure
to appreciate what is required of them in the trial of an action in
court or before a referee. The fault lies largely from the want of
detailed memoranda of facts, circumstances, measurements and
dates. One of the greatest faults of engineers is their failure to
date each and every memorandum, estimate or fact recorded. Not-
withstanding the training which engineers get in school and in the
field, and the frequent and repeated instructions by their employers
to date every entry, memorandum or statement made, it is my obser-
vation, founded upon a long experience, that engineers, superin-
tendents and foremen do not date their notes.
Testimony.—In order to prove anything before a court or a
referee it is essential that the witness should know as to what he
testifies, from his actual knowledge, acquired through one or any
of his five senses. He can not testify from books kept by time-
keepers or bookkeepers, but should and must be himself conversant
with the actual conditions, facts and circumstances prevailing and
about which he seeks to testify. It is necessary, therefore, that he
should be present when measurements are made and actually take
part if possible; that he himself should note such measurements and
should himself note the presence of laborers and mechanics, the
number and the actual time employed in doing certain kinds of
work, which may subsequently be the subject of litigation. It is
not always sufficient that he has seen the work done; that he knows_
the reasonable value thereof per unit measure; and that he has
since measured it. He should know himself the actual time spent
31
or the actual amount of work or the actual cost. In short he should
know absolutely within himself whatever he expects to be a wit-
ness to. It is a mistake for engineers, foremen and superintendents
to leave things to the time-keeper and to the bookkeeper. Personal
memoranda from personal observations and measurements are worth
very much more to a case than any number of account books.
Public Records.-I appreciate that there is some exception to
this rule in the case of public documents and records, but it is far
better that the engineer have knowledge within himself and be not
dependent upon time-keepers and bookkeepers, who may be in
foreign countries or beyond the reach of the court when the case is
tried. -
Probably in no place is the expression “It is the engineer's
fault” more frequently heard than in the law department of the
city, as after the trial of some cause in which the city is inter-
ested. The lawyer may plan and even direct litigation and may be
primarily responsible for the success of a suit or action at law, but
probably he is also the first to excuse himself if defeated or unsuc-
cessful, and while during my experience in engineering circles I do
not recall hearing in the office or drafting room the expression “It
is the lawyer's fault,” I do know what frequently is the unexpressed
thought of engineers as to the conduct and handling of cases by
the legal profession. Instead of declarations to the effect that it is
the lawyer's fault, the engineer usually contributes the failure of
the lawyer to his misfortune or weakness and his lack of knowledge
of the physical conditions, surrounding circumstances and en-
gineering operations. True, sometimes there are heard words sound-
ing like “dope,” “thick,” and “what do you suppose he meant,” but
it is indeed rare that engineers charge failure to the fault of the
lawyer.
Trial.—The prosecution of a law suit involves first a clear and
lucid declaration of the facts in the case. Conclusions, statements
of law and arguments should be omitted from the complaint, as they
have their place in subsequent proceedings. Facts not known to
the party verifying the complaint should be stated only upon in-
formation and belief. The answer likewise states facts and should
either deny or qualify such allegations of the complaint as are
untrue or not fairly and truthfully stated in the complaint. If it
32
be to the advantage of the defendant to acknowledge and affirm
any statements in the complaint, then that should be done, but
whatever is not denied will be taken as acknowledged. The trial
of the case involves the substantiation of these facts alleged, and
this involves a knowledge of what questions may be asked and in
what form they should be put, which is strictly the duty of the
lawyer. Here, too, in the trial of a case few declarations or pres-
entations of the law are required.
Facts.-From the above it will be seen that preparation of a
case for trial and the trial thereof have to do almost exclusively with
the facts in the case, and the acquisition and presentation of these
facts are what usually wins or loses a case at court. It must be
manifest that success in this undertaking depends upon a full and
thorough knowledge of the facts of the case, which in construction
work is peculiarly within the purview of the engineer. Lawyers
therefore depend largely upon engineers to assist them in the col-
lection and presentation of these facts, and therein lies two-thirds
if not four-fifths of the battle. If this be true, and I do not think
that it can reasonably be denied, it must be conceded that fre-
quently there is more truth than libel in the frequent arraignment
of lawyers that the loss of the case was the engineer's fault,
meaning thereby the witness’s fault.
The chief reasons why engineers do not make successful wit-
messes are, in my opinion, the lack of thorough understanding
between the attorney and engineer; the want of information on the
part of the engineer as to the shape in which the facts must be
presented to the court, and a lack of self-possession, and the prompt
comprehension of the English language by the engineer. *
Fault Charged.—No matter what happens, the engineer is more
or less likely to be charged with the fault. If the cost exceeds the
estimate, then the engineer is charged with short-comings. If
floods carry the public improvement away or winds blow it down or
earthquakes wrench it from its foundations, or if the mountain
slides down upon it, the public is likely to say that the engineer
should have foreseen these violences of nature and should have
provided against them. In such case the best defense for the
engineer to assume is that which was made in a recent case in
court where a prisoner was arraigned before the Judge for some
33
offense and the Judge said: “Prisoner at the bar, have you anything
to state in your defense?” The prisoner said: “No, your Honor, I
only ask you to deal with me as you would with yourself if you
were in my place.” I would also recall a wise saw: “The less
patience you have the more easily you lose it.”
Engineers and Lawyers.--In connection with this I would remind
the members of this society that it is of the utmost importance
that they should consider the points of view of attorneys and of
members of their own profession. Between the legal profession
and the engineering profession there is a chasm of differences.
From the foundation up, the structural creation of a lawyer and an
engineer is totally different. The lawyer's training is founded
upon the classics, history, logic, metaphysics and other polite sub-
jects; that of an engineer is founded upon mathematics and the
abstract sciences. The one is subtle, clever, trained, bred and
schooled as an advocate; the other is arbitrary, determined and fixed
in his opinions and absolute in his determinations. To a lawyer a
fact is what you may make it; to an engineer a fact is what it is
made, not by subtle presentation, but by the laws of nature and
by the faculties of reasoning. To the one law means law; to the
other law means that which you can convince the court to regard
as the law.
Eacperts.--It is not to be wondered that there should exist a
strong antipathy between the engineer and the lawyer, and it finds
an expression on the part of both sides in contemptuous expressions,
and especially after an advocate has been defeated by the testimony
of an expert engineer more carefully schooled and trained in the art
of answering questions by his opponent than his own witnesses. It
is my opinion that it is the engineer's fault that experts have the
awful reputation which the legal profession give to them for the
reason that they permit themselves to be biased and be made
advocates by the lawyers themselves.
Engineer's Character.—The engineer should fortify himself
against attack upon his reputation and character. Generally it is
the fault of any man if he be accused of being a partisan or of
being owned by certain interests. It should be the care and anxiety
of any engineer to be in all his dealings above suspicion and re-
proach. The fate of DeLesseps in the Panama Canal and of Adams
34
in the $9,000,000 canal improvement of 1895-98, are instances that
should be fresh in the minds of every practicing civil engineer, but
it is not necessary to take illustrious examples. In municipal work -
where the heads of departments are frequently, if not usually, poli-
ticians, whose appointments are merely the reward for active work
prior to and during election, the engineer's position is particularly
precarious. I take my hat off to any engineer who can, success-
fully, from year to year and through succeeding administrations,
hold himself in favor with the heads of his department and at the
same time keep himself above reproach. It requires a diplomat to
do that, and that it can be done I am fully satisfied, and without
sacrificing the self-respect of the engineer. In the Department of
Finance we have the example of one engineer holding a responsible
position for twenty years without ever, I believe, having been the
subject of suspicion. With the Board of Estimate and Appor-
tionment and with the several Borough Presidents we have en-
gineers who have survived several administrations and who are
to-day esteemed not only by the present incumbents of their office,
but by their predecessors. My own feelings are that these positions
is, to say the least, precarious. The members of the engineering .
profession are universally too poor to be charged with profiting by
their positions, and it is and has been the general rule that others
than those in the engineering department have profited by the
manipulations of public improvements. It has been said, and I
believe it, that the state Surveyor and engineer who had charge of
the canal improvement of 1895 left that office a poor man. I do
not think the same could be said of some of his subordinates.
Some of the things for which engineers are found fault with are
that they prepare their estimates of quantities, their plans and
specifications and their contract to favor certain contractors, be
they politicians or favored friends. One of the ways in which this
may be done is in the failure to publish the true conditions which
prevail at the work as discovered and known to the engineer. If
soundings, borings, etc., be made and essential information be
given to certain bidders which others do not possess, then those
certain bidders have a peculiar and special advantage in estimating
and bidding upon the work. If a profile or a description of under-
lying strata be not strictly correct and it be known to the engineer,
35
he may thus deprive the municipality of a close and fair competi-
tion. If the quantities be not truthfully represented in the esti-
mate and an unbalanced bid be made, the actual quantities as
they turn out may make the cost of the work much greater and the
profit to the contractor proportional, or the cost of the work might
even be less and the profit to the contractor much greater than
shown by the actual quantities given to the public.
If materials or work or plant are limited to certain manufac-
turers, then there is room for suspicion. This doubtless arises from
utilizing the experience and services of manufacturers or their
representatives in the preparation of the specification with the
result that might have been anticipated.
If the engineer so conduct his work and publish his results that
they do not prove true or reasonably correct, then it is his fault that
he is the subject of suspicion.
Conclusion.—This is a comprehensive subject, a subject that I
wish might be continued by some one else and from another point
of view, or by several from different points of view. I would like to
see it treated from a historical point of view. Certainly our early
engineers made mistakes. Serious mistakes from our point of view.
Even the Pyramids were a mistaken waste of materials. What
might have been created with the labor and materials wasted in
those tombs?
Our greatest physicists and chemists made grave mistakes. The
whole theory of phlogiston by Stahl was an error that took many
years to upset.
The industrial progress of the world is built upon a graveyard
of errors. Engineers need not blush at a rehearsal of their faults,
or when accused of having faults. It is to be hoped that they will
venture, that they may attempt new ways and means, even at the
expense of an occasional failure. Such men are progressive, they
work under pressure. What matter if they occasionally let a man
out and up through the East River heavenward, or if they drop the
City Hall into a sewer trench, it at least shows that something is
doing; and worse things have been done than to build bridges where
not needed, or to build them where needed, but without the means
of utilizing them; and it is better to have built something and to
have had them fall, than to have never improved our methods and
36
materials of construction. Faults belong to those who undertake, to ! -
those who do and we may well shoulder the faults, the errors and
mistakes with the great results being accomplished. We can well -
afford to have faults and to know them—for few faults were even .
corrected through ignorance of them. -->
N. . .
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