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Gerace & Castagna, Inc. v. City of New York

307 N.Y. 707 Court N.Y. Decision date 1954-07-14 English

Contents

Majority

p. 707
Gerace & Castagna, Inc., Appellant, v. City of New York, Respondent.
Argued May 24, 1954;
decided July 14, 1954.
p. 708
Solomon A. Klein, Leonard Lazarus and Richard Klugherz for appellant.
Adrian P. Burke, Corporation Counsel (Anthony Curreri and Seymour B. Quel of counsel), for respondent.

Judgment afiirmed, with costs.

Concur: Lewis, Ch. J., Desmond, Dye, Fuld and Van Voorhis, JJ. Froessel, J., dissents in the following memorandum : I dissent and vote to modify. I agree that the Appellate Division’s reversal of the judgment was proper but disagree as to the dismissal of the complaint and as to the Appellate Division’s holding: ‘ ‘ it must be held as a matter of law that the acceptance of the final payment was a release to the city.” In my opinion this was clearly a question of fact for the jury, but they should have an opportunity of passing upon the reasonable value of the extra work, which the trial court took away from them. Taking no part: Conway, J.