No. 29. IN ASSEMBLY January 16, 1846. REPORT Of the committee on claims, on the petition of Fitzsimmons and Brady, for relief. Mr. Dean, from the committee on claims, to which was referred the petition of Patrick Fitzsimmons and James Brady, for extra allowance for constructing sections 8 and 9, of the enlargement of the Erie canal, REPORTS: That Fitzsimmons & Brady entered into a contract with the State, in August, 1836, to construct sections 8 and 9 of the enlargement of the Erie canal, and that they have, according to the terms of the contract, completed the work. Among other items of excavation specified in the contract, are the following, viz: That soon after the petitioners entered upon the work, as appears from the testimony, they found it necessary to excavate, to a considerable extent, solid slate rock, which the engineer classed as slate rock, and to be paid for at that rate. The petitioners thereupon applied to the Canal Commissioner having charge of those sections, and insisted that they should be paid for excavating solid slate rock, the [Assembly, No. 29.] 1 same price as specified in the contract for solid rock. The Commissioner informed them that he had not the power to allow them any more for excavating solid slate rock, than the price specified in the written contract for slate rock; and he advised them to go on and complete their contract, and apply to the Legislature for a proper allowance for such excavation. It appeared from testimony introduced before the committee, that an ordinary hand could not excavate more than one cubic yard per day, of this solid slate rock, and that it was as difficult of excavation as granite rock or limestone rock. It also appeared that one of the petitioners had previously done similar excavation on the Troy road, and had received a price equal to that specified for solid rock, and that they, on taking this contract, expected to be paid the same price for solid slate rock as for solid rock. From the testimony before the committee, it further appears that the petitioners had a hard contract, according to the construction given it by the Canal Commissioner; and as men might very honestly differ as to the true construction of the contract, and as it appears that the petitioners did understand that they were to be paid for solid slate rock the same as for solid rock, and as the expense of excavation for solid slate rock is about the same as that for solid rock, the committee are of opinion that an extra allowance should be made to the petitioners equal to forty-five cents on each cubic yard of solid slate rock. DOCUMENTS. (No. 1. ) Copy of a letter to Mr. A. Whitney, Canal Commissioner. In relation to Fitzsimmons & Brady's claim for payment as solid rock for slate rock. The contract prices are for solid, quarried, and slate rock, and the explanation of the reasons for the classification complained of by Fitzsimmons & Brady, are given in a report of the Canal Commissioners, on a similar claim of Marlett & Dunham, in lock 3, Assembly Doc. No. 31. Jan. 10th, 1839, and the report of the committee, Doc. No. of the same year. The contracts for sections 7 to 11, were the first let upon the enlargement in August, 1836, and each of them have a similar claim. Their prices for rock are as follows: When the old contractors began to claim payment as solid, for this slate rock, we altered the expression of the contracts to read thus: for solid rock, except slate; for quarried rock, except slate; so that there could be no misunderstanding on their part. On our part our estimates and previous calculations all show, that we intended this classification, but there were probably some of the contractors who did not so understand it. As regards the geological character of the work in question, there is no doubt of its being slate; it was not as hard rock as was found by Marlett & Dunham, in lock 3, but required blasting and was much harder and more expensive than many kinds of rock which would come under our classification of "solid rock," such as Greywacke, Limestone, &c. Copy of testimony of Wm. J. McAlpine, before Cana. Commissioners. January, 1840. At the letting, which occurred in August, 1836, copies of the contracts were exhibited to all who wished to propose for work. These contracts were the same as the petitioners signed, and contained prices as follows: For solid rock, for rock which in the opinion of the Engineer can be quarried, and for slate rock. The rock met with by the petitioners was strictly slate rock, in its geological character, and the material we (the Engineers and Commissioners,) meant to have embraced in the item of "slate rock." From 2 to 3 feet from the surface could be taken out by picks, bars, &c., without blasting, and perhaps a foot of the surface might be ploughed; the remainder could not have been excavated without blasting. The slate rock in this vicinity is called primitive argallite, and is much harder than slate generally. The shafts that were sunk to exhibit the material to contractors were only dug to the rock, and some may have been deceived by them, supposing the whole rock would be as easily excavated as the surface, but the old Erie canal, and the Cohoes canal was cut through it from 10 to 30 feet in many places near the new canal, and showed its nature fully, and we did suppose that it would increase in hardness with its depth. The contractors and several others, early claimed pay for this blasted work as "solid rock," and I believe they were deceived when they put in their proposition for the work. To prevent any others from being deceived we subsequently altered the forms of the contracts to read as follows: For solid rock (except slate.) For quarried rock, (except slate.) For slate rock. This has prevented any doubt as to the construction of the con tract. The fair value of this slate rock, taking the soft with the hard, for 6 to 10 ft cutting, is about fifty cents. A less depth of cutting is worth less, and deeper more. The upper 2 to 3 feet might be excavated for 25 to 30 cents, and the lower portion is worth 70 cents per cubic yard. The whole quantity of rock excavated is about 22,000 cubic yards, and the hard portion of it about 9,500 cubic yards. (No. 2. ) Affidavit of Wm. C. Bouck. STATE OF NEW-YORK, SS. William C. Bouck, being duly sworn upon his oath says, that in the year one thousand eight hundred and thirty-six, Patrick Fitzsimmons and James Brady, of West Troy, in the county of Albany, entered into a contract with the Canal Commissioners for the construction of sections Nos. 8 and 9 on the enlargement of the Erie canal, in the county of Albany. And this deponent further says, that by the terms of said contract, said contractors were allowed a certain price per cubic yard for excavating solid rock, which, as this deponent is informed and believes, was seventy-five cents per cubic yard, and for excavating slate rock, another specified sum, which this deponent is informed and verily believes was only thirty cents per cubic yard. And this deponent further says, that said contractors entered upon the work specified in their said contract, and that in proceeding in the execution of their said contract they encountered and were compelled to excavate a quantity of rock which was solid slate rock. This deponont further says, that for most of the time said contractors were engaged upon their said contract, he was then acting Canal Commissioner upon that portion of the Erie canal embracing said sections, and further says not. Sworn before me, April 5, 1842. L. SHERWOOD, State Senator. WM. C. BOUCK. (No. 3.) Affidavit of Owen Burns and others. Before the committee of claims of the Senate of the State of NewYork, in the matter of the petition of James Brady and Patrick Fitzsimmons. Rensselaer county, ss. Owen Burns, of Watervliet, in the county of Albany, being duly sworn, says that he worked in the employ of Brady and Fitzsimmons upon sections Nos. 8 and 9, on the enlargement of the Erie canal; that on those sections it became necessary to excavate a large quantity of solid slate rock. And this deponent further says, that for a part of the time during said excavation he was an overseer of the |