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Joseph Canepi Contracting Co. v. City of Yonkers

244 N.Y. 515 Court N.Y. Decision date 1926-11-30 English

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p. 515
Joseph Canepi Contracting Company, Inc., Appellant, v. City of Yonkers, Respondent.

Headnote

Practice ■ — ■ reference — action for breach of contract — compulsory reference improper.
Canepi Contr. Co., Inc., v. City of Yonkers, 217 App. Div. 775 , reversed.
(Argued November 16, 1926;
decided November 30, 1926.)
Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the second judicial department, entered June 25, 1926, which affirmed an order of Special Term granting a motion for a compulsory reference. Two actions were brought, one by plaintiff, and the other by defendant, to recover for alleged breach of a contract for" grading and paving a street. The actions have been consolidated. Plaintiff claims damages for delay and extra work. Defendant claims excess in cost of completing work over the contract price.
The following question was certified:
“ Is this an action- in which the court, without the consent of plaintiff, may direct the trial of the issues of fact by a referee? ”
Howard G. Wilson, Frederick W. Newton and John C. Wait for appellant.
Arthur C. Hume, Corporation Counsel {Joseph W. Bryan and Richard E. Fitz Gibbon of counsel), for respondent.

Orders reversed, with costs in this court and Appellate Division, and motion denied, with ten dollars costs. Question certified answered in the negative on the authority of Untermyer v. Beinhauer ( 105 N. Y. 521 ); Johnson v. A. A. R. R. Co. ( 139 N. Y. 449 ).

Concur: Hiscock, Ch. J., Cardozo, Pound, McLaughlin, Crane, Andrews and Lehman, JJ.

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