Cross, Austin & Ireland Lumber Co. v. Archibald Hadden & A. Hadden Co.

Majority

p. 892

Cross, Austin & Ireland Lumber Company, Respondent, v. Archibald Hadden and A. Hadden Company, Appellants. Bayside Lumber Company and George Thompson, Respondents.

Headnote

Appeal by the defendants, Archibald Hadden and another, from a judgment of the Supreme Court, made at Special Term and entered in the office of the clerk of the county of Queens on the 29th day of May, 1913.

It was not proven that the contractor so far fulfilled his contract as to entitle him to the payment of $1,000, or that Hadden unduly refused to make the payment, or that the failure of the contractor to perform was inadvertent, or that any sum is due the contractor. So far as the findings, particularly sixth to thirteenth findings of fact, otherwise decide, they are not in accordance with the evidence, and the judgment should be reversed and a new trial granted, costs to abide the final award of costs. Jenks, P. J., Thomas, Carr, Stapleton and Putnam, JJ., concurred. Judgment reversed and new trial granted, costs to abide the final award of costs.