Leopold v. City of New York

Headnote

Contract — New York city — action to recover balance alleged to be due for building sewer.

Leopold v. City of New York, 184 App. Div. 244 , affirmed.

Appeal from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered August 8, 1918, modifying and affirming as modified so much of a judgment as was in favor of plaintiff entered upon a verdict and reversing so much of said judgment as was in favor of defendant and granting a new trial. The action was to recover a balance alleged to be due for building a sewer in the city of New York. Of the amount claimed $7,830 had been retained by the city as liquidated damages for delay in completion of the work, $1,462.14 had been retained as payment for city water used on the work and $1,709.30 was retained to pay for removing and relaying a certain water main. The trial justice directed a verdict with interest from June, 1913, in favor of plaintiff for the $7,830 deducted for overtime, and for the $1,462.14 for water consumed. He sent to the jury the question of liability relating to the $1,709.30 for failure to remove and relay the water pipe and the jury returned a verdict in favor of defendant. Both sides appealed, defendant against the entire judgment, plaintiff against so much of the judgment as failed to award it interest on the $7-,"830 and the $1,462.14 from May, 1908, and as failed to award it the $1,709.30. The Appellate Division modified the judgment by affirming the finding that plaintiff was entitled to the $7,830 and the $1,462.14, but added interest during a certain period which the trial justice had not allowed, and reversed that part of the judgment based upon the jury’s verdict in favor of defendant for the $1,709.30 and ordered a new trial as to it.