App. Div.] First Department, December, 1915. also admitted receiving a letter on December 4, 1911, from the president of the borough of Manhattan, wherein he was directed to suspend work on his contract until such time as further notice to proceed with the work should be given him, and was further directed to refill the trenches then open, restore the roadway over the same, and relay a permanent pavement over the 240 feet of the trench already back-filled. The work of repaving was to be done within forty-eight hours of the receipt of the notice. He acknowledged the receipt of the letter in writing, under date of December fifth, and therein wrote to the borough president: "I do not think it is to the best interests of the City that I should suspend work upon this contract until such a time as further notice to proceed with the work shall be given me. I believe it to the best interests of the City to make payments to me to which I am entitled under the contract and for me to continue the work." As a matter of fact, he never did this work which he was called upon to do. Then, on March 18, 1912, he was notified by the city "to resume work April 1, 1912, upon your contract with this Department for the alteration and improvement to sewer and appurtenances in 72nd Street between Amsterdam and Columbus Avenues." To this, on March 21, 1912, he replied in writing, refusing to comply with the notice and standing upon the claim that the city had defaulted in, and broken, its contract with him by failure to make the payment of $1,229.90, which became due about December 1, 1911, as he contended, and further by suspending his work on the contract in violation of his rights and against the interests of the city. He never did resume the work under his contract. There is no doubt that under the provisions of the contract between the plaintiff and the defendant the city had the right under clause M thereof to suspend the whole or any part of the work contracted to be done if it should deem it for the interest of the city, and, furthermore, during such suspension to cause the trenches to be refilled and the roadway over the same property restored. Nor can there be any question that the city had the right under the contract between it and the plaintiff to direct the plaintiff to resume work and to complete the contract when it deemed the same for the best interest of the city. Therefore, the plaintiff First Department, December, 1915. [Vol. 170. has breached the contract with the defendant, and not only forfeited his right to payment under the contract but rendered himself liable to the city for the cost to which it was put in doing the work which he should have done, unless the city itself was first in default and was guilty of a breach of the contract by failure to pay the amount of the certificate in question to the plaintiff upon his demand. Deputy Comptroller Matthewson fixes the date of the conversation between the plaintiff and himself as December 1, 1911, verifying it by reference to his memoranda, and that date has been accepted as the correct one by the trial court. He testified that he knew when plaintiff called upon him that there had been considerable damage done as a result of the explosion on the plaintiff's work, and that although no claim had been filed with the finance department, a claim had been filed with the borough president. He had also learned of the explosion and damage which had followed it from the newspapers, and he told plaintiff in substance that he wanted time to find out what the claims amounted to, and how much it would be necessary to withhold to protect the city, or that in the alternative the plaintiff would have to give the city a bond. He said that claims were anticipated, as they had knowledge that there were damages, and claims followed damages, and insisted that the refusal to pay was only until they had ascertained the amount of the claims or plaintiff gave them a bond. At this time he also knew officially through Mr. Prial, in his office, of the explosion and damages. The court below in directing a verdict for plaintiff in the face of the proof as to the failure of the plaintiff to obey the city's direction to suspend work and to relay the pavement, and his refusal to proceed with the work when directed (necessitating reletting to new contractors), did so because he held as a matter of law that there was a repudiation of the contract by the city in its refusal to pay the amount of the warrant on December first, and that inasmuch as no claims had then actually been filed with the finance department, the city had no right to withhold payment of the certificate or to ask for the bond, even though it knew that damage had followed the explosion on the plaintiff's work. The case, therefore, turns solely on the question of whether, on Decem App. Div.] First Department, December, 1915. ber first, when plaintiff demanded payment of the amount of the certificate, the city had a right to refuse to make immediate payment thereof. We think that under the contract between the parties the city had the right to withhold payment for a reasonable time in view of all the circumstances within which to determine whether it could safely pay the plaintiff the amount then certified upon his contract. The clauses of the contract bearing upon this are W and Z, as follows: "W. The Contractor shall sustain in their places and protect from injury all water or gas mains, conduits, subways or service pipes, steam pipes, and pneumatic pipes, and all sidewalks, curbs, stoops, areas and all other property in the vicinity of his work from direct or indirect injury by caving or otherwise, and he hereby assumes all expenses for direct or indirect damage which may be occasioned by injury to any of them; and the Contractor shall at all times have a sufficient quantity of timber and plank, chains, etc., on the ground, and shall use the same as required for bracing and sheet piling the sides and ends of excavations, and for sustaining and supporting the sides and any and all pipes, conduits, subways or other structures that are undermined, weakened, endangered or threatened; and in case any damage or injury shall or may result to the said pipes, conduits, subways, lamp posts and lamps, and other works or structures of any gas, electric, railroad or other company whatsoever, or to any private property, through or by the reason of any negligence, carelessness or want of skill on the part of the Contractor, his agents or servants, the Contractor shall pay such amount as may be sufficient to cover the expense and damages occasioned by such negligence, carelessness or unskillfulness; and such amount shall be charged against the Contractor, and the President is hereby authorized to deduct and retain from any moneys which may be due, or which shall become due to the Contractor, a sum sufficient, in his judgment, to cover the cost of repairing any such damages, expenses or loss, and to apply said sum so deducted and retained to said repairs or renewals, or to reimburse the parties so damaged or injured." "Z. The Contractor shall place proper guards for the preven tion of accidents, and shall put up and keep up suitable and First Department, December, 1915. [Vol. 170. sufficient lights at night and when necessary, during the delivery of materials or supplies, to prevent accident or injuries to the person or property of another, and he will indemnify and save harmless The City from all suits or actions and damages or costs of every name and description to which The City may be subjected or put by reason of injury to the person or property of another resulting from negligence or carelessness on the part of the Contractor, his servants or agents, in the delivery of the materials and supplies, or by or on account of any act or omission of the Contractor, his servants or agents, and the whole or so much of the moneys due, or to grow due the Contractor under this agreement as shall or may be considered necessary by the Comptroller of The City shall or may be retained by The City until all such suits or claims for damages shall have been settled or otherwise disposed of, and evidence to that effect furnished to the satisfaction of the Comptroller." Under these clauses it was not necessary there should be actual claims against the city presented, but it was sufficient if the proper city officials had knowledge of the explosion upon the work, of the fact that plaintiff was claimed to be responsible for its occurrence, of damage done to city or private property, and of the probability or possibility of the presentation of claims therefor. Nor were the city authorities bound to assume that the contractor alone would be sought to be held liable, and not the city as well, until investigation had satisfied them thereof. They were, therefore, entitled to a reasonable time after the happening of the explosion to satisfy themselves as to what, if any, liability was claimed to exist upon the part of the city, before they could be called upon to pay the amount of the outstanding certificate. Nothing in the contract, nor in the course of dealing between the parties, demonstrates that the city was in default on December first, when demand was made for payment; and only eight days having elapsed since the happening of the explosion, it cannot be said that the determination of the city authorities to take a longer time to satisfy themselves as to what they should do to protect the city's interests, was unreasonable under the contract. Therefore, the city not being in default, and not hav App. Div.] First Department, December, 1915. ing broken the contract, the plaintiff himself breached it by his subsequent refusals to suspend the work and close up the trenches, and again to resume the work, and is not entitled to recover under his contract. The city upon the trial not having asked for affirmative relief against the plaintiff, and not doing so upon this appeal, the judgment and order will be reversed, with costs, and the complaint dismissed, with costs to the appellant. INGRAHAM, P. J., MCLAUGHLIN, LAUGHLIN and SCOTT, JJ., concurred. Judgment reversed, with costs, and complaint dismissed, with costs. NEW YORK WET WASH LAUNDRY COMPANY, Appellant, v. MORRIS UNGER, Respondent. First Department, December 30, 1915. Master and servant - breach of agreement not to work for employer's competitors-injunction pendente lite. A person employed to procure customers for the plaintiff who agreed not to accept similar employment in a certain locality for one year, but who, in violation of the agreement, entered into the service of a competitor of the plaintiff and solicited the plaintiff's customers for the competitor, will be enjoined pendente lite from soliciting the business of any person who was the plaintiff's customer while he was in its employ. APPEAL by the plaintiff, New York Wet Wash Laundry Company, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 30th day of November, 1915, denying its motion to continue an injunction pendente lite. Louis Boehm, for the appellant. John Mithertz, for the respondent. PER CURIAM: Defendant was formerly employed to procure customers for the plaintiff, for which he was paid compensation. The evidence fairly establishes that employment was for six months, with an agreement not to engage in plaintiff's business in the |