Recknagel v. Steinway — 184 N.Y. 614

Majority

p. 614

Ottilie Recknagel, Respondent, v. Charles H. Steinway et al., as Executors and Trustees under the Will of William Steinway, Deceased, et al., Appellants.

Headnote

Recknagel v. Steinway, 105 App. Div. 561 , modified.

(Argued April 2, 1906;

decided April 17, 1906.)

Appeal from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered June 21, 1905, affirming a judgment in favor of plaintiff entered upon a verdict directed by the court and an order denying a motion for a new trial.

Henry W. Taft, Frederick W. Yates and Charles Oakes for appellants.

R. Burnham Moffat for respondent.

So much has been written in this case that we shall content ourselves with simply stating our Conclusions. 1. The plaintiff is not entitled to recover in one sum as for an entire breach of the contract in suit. 2. She is entitled to judgment for all installments due and unpaid on the contract up to the time of the commencement of this action. 3. She is entitled to maintain an action or actions for' the payment by the trustees named in the agreement of the installments accrued and to accrue subsequent to the commencement of the action in accordance with the terms of the contract.

The judgment herein should be modified so as to conform jo these conclusions, and as so modified affirmed, without costs in this court to either party, and tlie case is, therefore, remitted to the Special Term with directions to take such proceedings as may be necessary to carry the judgment as modified into effect.

Cullen, Ch. J., Gray, Werner, Hisbook and Chase, JJ., concur; Edward T. Bartlett, J., dissents from opinion and votes for affirmance of judgment without modification; O’Brien, J., absent.

Judgment accordingly.