elsewhere along the line of the Barge canal either in its ditch construction or canalization portions. It is a case of history repeating itself. This is now the measure of the navigation of the Oneida river at the place in question just as the original Erie canal with its improvement was formerly the measure of the navigation on the Oneida river at the same locality.

The State now fixes, by the terms of its demand in this case, the elevation of fixed bridges to be only sufficient to accommodate navigation measured by the capacity of the Barge canal itself. This is a fixing of the character of navigation of the Oneida river at the location of claimant's bridge. This necessity, so determined, requires that a fixed bridge must be three and three-tenths feet higher than the old bridge to comply with the statute. The State is hardly in a position to claim that the former elevation of twelve feet being eight inches more than the required elevation of bridges on the Erie and Oswego canals was not at that time a reasonable measure of the navigation necessities of the Oneida river, when the present elevation ordered by the State is measured by the present Barge canal necessities, and requires a raising of only three and three-tenths feet.

While there seems to have been a technical violation of the statute which was in force at the time of the construction of the bridge, we think that the spirit of the statute was complied with when a twelve-foot clearance was provided for and that, while steam and sail navigation existed to a degree at that time, that the real, actual improved navigation of the stream was not interfered with by a fixed bridge at that elevation at that place, particularly in view of the fixed towpath bridge, long antedating this bridge, which spanned the Oneida river a very short distance westerly and at the junction of the Oneida, Seneca and Oswego rivers.

We reach the conclusion that in spite of the apparent technical illegality in the original construction of the bridge, that its vser without objection for more than forty years, its capacity for accommodation, by a twelve-foot clearance, of substantially all the navigation passing that point and the State's present determination

not to demand a renewal or a drawbridge but simply to increase the elevation three and three-tenths feet, bring the bridge within the doctrine of the Lehigh Valley case as being one of the bridges for the raising of which the State assumed payment. Lane Bros. Co. v. State, 11 State Dept. Rept. 117, 126.

According to the report of State Engineer Bond, made prior to the Barge Canal Act, an estimate was made of the cost of twentyseven railroad bridges which it was found necessary to change, included in which number was claimant's bridge across the Oneida river at Three Rivers Point, being the bridge in question here. The cost to the State of changing this bridge was estimated at $31,520. The actual cost of altering and raising the bridge, as checked by the State inspectors during the progess of the work, and as admitted by the State, was $36,988.88. An item for legal costs, amounting to $440.52, made by claimant is objected to by the State as being an improper charge against the cost of elevation of the bridge. We think the State's contention in this respect is correct and have subtracted the item of $440.52 from the original claim of $37,429.40, leaving a balance of $36,988.88.

Claimant's exhibit No. 16, being a letter from George W. Kittredge, chief engineer of the New York Central and Hudson River Railroad Company, to John A. Bensel, State Engineer and Surveyor, was offered and received, but with a reservation that the ruling be made at the disposition of the case and the party ruled against be given the exception. The objection to the receipt of the letter, exhibit No. 16, in evidence is sustained, and the claimant is given the exception.

The preliminary reports of the State Engineer shown in various Assembly and Senate journals, including the Bond report, so-called, and the various portions of the Senate and Assembly journals prior to the enactment of the Barge Canal Act which were objected to and received conditionally, are received in evidence, and the State is allowed the exceptions.

An order for judgment for $36,988.88 with interest from June 18, 1915, has accordingly been made.

ACKERSON, J., concurs.

STATE DEPT. REPT.- Vol. 15 5

RIBSTEIN-HOLTER COMPANY v. STATE OF NEW YORK

No. 15079

(Dated February 7, 1918)

A contractor familiar with the form of State contracts is chargeable with knowledge of the fact that a requirement mentioned on the plans but not in the specifications is nevertheless a part of such contract.

The claimant by its president and treasurer entered into a contract, one of the specifications of which was "whenever any of the following words and expressions are used in these specifications it is understood to have the meaning herewith accompanying." The question herein to be considered is as to the use of the words "imported material" on a plan accompanying a highway contract taken by claimant. The claimant contends that the provision quoted applies merely in case the term under discussion is included in the specifications but not when the term appears on the plans and is omitted from the specifications. Held, that the claimant, being thoroughly familiar with State highway contracts and the work to be done thereunder, cannot now be heard to say that the company did not know that the words in question were on the plans. Even if he had no such knowledge he must be presumed to have had knowledge that under the itemized proposal the company certifies to having carefully examined the plans, specifications and form of contract and waives all right to plead any misunderstanding regarding the same. Claim dismissed.

CLAIM against the State of New York arising from the use of the words "imported material" on a plan accompanying a highway contract taken by the claimant. The claim necessitates the construing of the words above quoted in such a contract.

Hugh J. O'Brien and Charles A. Bostwick, for claimant.

Merton E. Lewis, Attorney-General (Henry P. Nevins, Deputy Attorney-General), for State.

FENNELL, J.-This claim arises out of the use of the words "imported material" on a plan accompanying a highway contract. Their meaning is stated in the general specifications to be "any

material used in the work which is brought by water or railroad or other common carrier."

The 1st paragraph of the specifications reads as follows: "Whenever any of the following words and expressions are used in these specifications it is understood to have the meaning herewith accompanying."

It is contended by counsel for claimant that the meaning above set forth must be applied only when used in "these specifications and not when the words "imported material " appear on the plans. The "itemized proposal," which the claimant executed, contained the following: "The undersigned also hereby declare that he has or they have carefully examined the plans, specifications, form of contract, and that he has or they have personally inspected the actual location of the work together with the local sources of supply, has or have satisfied himself or themselves as to all the quantities and conditions, and understands that in signing this proposal he or they waive all right to plead any misunderstanding regarding the same."

It would seem that the claimant, having executed by its president and treasurer, Mr. Ribstein, an instrument containing the above clause, and Mr. Ribstein being thoroughly familiar with State highway contracts and the work to be done thereunder, cannot now be heard to say that he did not know that the words in question were on the plans. It may be the fact that he did not, but, in view of the above clause, he must be presumed to have

known.

We cannot agree that the words "these specifications" should have the limited construction urged and thus not be inclusive of their use on the plans.

These words "imported material," and their described meaning, have been used in the State's standard form of highway contract for a definite purpose. It has been found from experience, and it is clearly based on sound judgment, that the more information the State highway authorities can get as to sources, kinds and quantities of highway material, and then give publicly to prospective bidders, the lower the bids will be. If the

contractors were "bidding in the dark" as to sources of materials, they naturally and properly would use a larger factor or margin of safety which, of course, would add to the cost of the road without adding to its quality. To obtain such information inspections are made of the neighborhood of the proposed contract and the information thus obtained is placed on file and then brought to the attention of the bidders. Where no satisfactory local materials are discovered that condition is made known to bidders by the designation "imported materials." If a State inspector finds suitable material and informs a contractor instead of the Highway Commissioner, the bids will all be high, but one would be a little lower than the others, and one contractor will make a much larger profit because he will use the local material disclosed to him secretly by the inspector. This makes a higher price to the State than would be the case if the bidders were bidding on a known source of local supply. Further, it would not be fair to the other competing bidders if, after a contract was let, where no local supply was indicated, the successful bidder was allowed to use such a source. It might also be added that such permission to use local material would be solely for the benefit of the contractor. The State being bound to pay the contract price, and as the contract price is based on the lowest bid, and as all the bids. were made in view of the absence of local material, and the necessity for using imported material, it will readily be seen that the contractor and not the State would benefit by the use of the local material.

We think the Highway Commissioner is fully authorized to incorporate in highway contracts such provisions as will reduce or eliminate improper or corrupt transactions in the obtaining or carrying out of highway contracts.

It is further contended by counsel for claimant that such a holding would be illegal in this case as it does not permit competition with local suitable material. We are not inclined to agree with him. The question of restricted competition can hardly be urged by a claimant who raises it after the contract is made and the State bound to pay a contract price. Mr. Ribstein