Holmes v. City of New York

Headnote

Holmes v. City of New York, 157 App. Div. 891 , affirmed.

. Appeal from a judgment of the Appellate Division of the Supreme Court in the second judicial department, entered June 23,1913, affirming a judgment in favor of defendant entered upon a dismissal of the complaint by the court at a Trial Term without a jury in an action to recover for an alleged breach of contract for the removal of snow and ice. The action was based on the theory that the contractor removed certain quantities of snow and ice; that he was paid a certain sum on-account, and that there is a balance due him. For the purpose of predicating an attack upon the measurements of the inspectors the following allegation is made: “That the commissioner, inspectors, officers, agents or appointees of the department of street cleaning of the city unreasonably, arbitrarily, without cause, illegally and in violation of their duty and the terms of this contract, withheld and refuses to give certificate to the plaintiff or to certify, pass upon and determine plaintiff’s accounts which were duly rendered for the removal of 98,481.75 cubic yards of snow, which work, labor and services, pursuant to the terms of the contract, was of the value of $27,739.38.” In addition

to putting in issue the allegation of the complaint, the defendant pleaded as affirmative defenses: Payment in full; a general release, and certain contract provisions, which it. was claimed precluded a recovery.