Forty-second Street, Manhattanville & St. Nicholas Avenue Railway Co. v. United States Wood Preserving Co.

Headnote

Forty-second Street, M. & St. N. A. Ry. Co. v. U. S. Wood Preserving Co., 177 App. Div. 885 , affirmed.

Appeal from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered February 21, 1917, affirming a judgment in favor of plaintiff entered upon a verdict directed by the court. Defendant entered into a written contract with plaintiff by which it agreed to pave that portion of the roadway of One Hundred and Tenth street between Fifth avenue and Lenox avenue in the city of New York, which is commonly known as the railway area, and to maintain. the said pavement in repair for five years from the completion and acceptance thereof by the plaintiff; The roadway having become defective within the term specified, plaintiff notified defendant to repair and it having failed to do so made the repairs at its own expense and brought this action to recover the amount thereof. Defendant contended that the contract only guaranteed good materials and workmanship, so that the pavement would withstand in good condition and repair all the traffic which might come upon it during the period of maintenance; and that the defects were not the result of any failure in that respect, but were caused solely by a new, unusual and defective method which • the plaintiff had required the defendant to use in laying the original pavement.