Sheppard v. City of New York — 233 N.Y. 676

Majority

p. 676

John S. Sheppard et al., as Receivers of Bradley Contracting Company, Appellants, v. The City of New York, Respondent.

Headnote

Contract — action to recover on contract for public work —■ when contractor barred by acceptance of “ final payment ” from enforcing demand for further payments.

Sheppard v. City of New York, 196 App. Div. 940 , affirmed.

(Argued May 11, 1922;

decided May 31, 1922.)

Appeal from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered May 31, 1921, affirming a judgment in favor of defendant entered upon a dismissal of the complaint by the court at a Trial Term without a jury. The action was to recover moneys alleged to be due on a contract for public work. The trial court sustained a defense pleading payment by defendant and acceptance by plaintiffs of the $251,857.62 as the “ last and final payment provided by the contract,” and alleging that by such acceptance plaintiffs, under the terms of the contract, were barred and concluded and had released defendant.

Frederick L. C. Keating and John S. Sheppard for appellants.

p. 677

John P. O’Brien, Corporation Counsel (John F. O’Brien, Willard S. Allen, Edward F. Bennett and Charles C. Smith of counsel), for respondent.

Judgment affirmed, with costs; no opinion. ■

Concur: His cock, Ch. J., Hogan, Cardozo, Pound, McLaughlin, Crane and Andrews, JJ.