English Construction Co. v. State — 233 A.D. 238

Majority

p. 238

The English Construction Company, Inc., Appellant, v. The State of New York, Respondent.

(Claim No. 19484.)

Fourth Department,

June 30, 1931.

Harry Kalman, for the appellant.

John J. Bennett, Jr., Attorney-General [James Gibson, Assistant Attorney-General, of counsel], for the respondent.

The contract provides for the payment of a gross sum for the entire work. It does not fix the amount to be deducted from the contract price for the work on the Elmwood Building, which was omitted by the order of the State under article 23 of the contract. It, therefore, follows that the fixing of such amount involves a question of fact. The court below did not determine this question. While there is testimony in the record from which the value of the omitted work might be fixed by us, we think that the ends of justice will be better met by a new trial

p. 239

upon which the question may be more satisfactorily resolved than by a decision on the conflicting testimony in the record as it stands.

The judgment should, therefore, be reversed and a new trial ordered, with costs to appellant to abide the event.

All concur. Present — Sears, P. J., Crouch, Taylor, Thompson and Crosby, JJ.

Judgment reversed on the law and a new trial granted, with costs to the appellant to abide the event.