General Contracting Co. v. Burgard — 207 N.Y. 775

Majority

p. 775

General Contracting Company, Appellant, v. Henry P. Burgard, Respondent.

Headnote

General Contracting Co. v. Burgard, 146 App. Div. 899 , reversed.

(Argued February 7, 1913;

decided March 18, 1913.)

Appeal from a judgment of the Appellate Division of the Supreme Court in the fourth judicial department, entered October 9, 1911, affirming a judgment in favor of defendant entered upon a verdict in an action on contract.

Adolph Rebadow for appellant.

Eugene L. Falk and E. C. Schlenker for respondent.

It was error for the court to charge the jury that if the money loaned by the defendant to Jones went into the work of cleaning the streets, it was to be regarded as a part of the cost to the defendant of completing the contract. The question was not solely whether the money went into the work. It was whether the defendant made an independent loan to Jones or an advance of money to pay in part the cost of the street cleaning as it progressed.

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

Cullen, Ch. J., Gray, Willard Bartlett, Hiscock, Cuddeback, Hogan and Miller, JJ., concur.

Order and judgment reversed, etc.