United States Wood Preserving Co. v. City of New York

Majority

p. 581

United States Wood Preserving Company, Respondent, v. The City of New York, Appellant.

(Argued October 30, 1911;

decided January 16, 1912.)

Headnote

TI. S. Wood Preserving Co. v. City of New York, 139 App. Div. 900 , reversed.

Appeal from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered June 7, 1910, affirming a judgment in favor of plaintiff entered upon a verdict in an action to recover for work performed and materials furnished.

Archibald JR. Watson Corporation Counsel (Terence Farley of counsel), for appellant.

John J. Cunneen and William W. Niles for respondent.

Judgment reversed and new trial granted, costs to abide event, on the ground that there was evidence from

p. 582

which the jury might have found that the work sued for was included within the original contract and that it was fraudulent and collusive for the defendant’s officials to agree to pay the plaintiff therefor, and, therefore, it was error to refuse to submit the question to the jury; no opinion.

Concur: Cullen, Ch. J., Haight, Willard Bartlett and Collin, JJ. Dissenting: Gray, Vann and Hisoock, JJ.