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Healy v. Bulkley

10 N.Y.S. 702 Court Brooklyn City Ct. Decision date 1890-06-23 English

Contents

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p. 702
Healy v. Bulkley.
(City Court of Brooklyn, General Term.
June 23, 1890.)

Headnote

1. Building Contracts—Evidence.
In an action for breach of a contract for the building of a house, evidence as to the cost of removing defective material, and of replacing the same in accordance with the contract, was admissible.
8. Damages—Instruction.
In such action a request to charge as to the rule of damages for defective workmanship or poor material is properly refused as too general, where there is also a claim for material not furnished, and for delay in the performance of the contract.
Appeal from trial term.
Action by Catherine Healy against Washington Bulkley. There was a judgment for plaintiff, and defendant appeals.
Argued before Clement, C. J., and Osborne, J.
Samuel P. Potter, for appellant. Thos. D. Sambaut, for respondent.

The plaintiff brought this action to recover damages for breach of contract for the building of a house, and on the trial it was claimed that the defendant delayed performance, and that there were defects in the work. The jury rendered a verdict for the plaintiff for the sum of $450, and from the judgment entered thereon this appeal is taken. We are only called upon to review certain exceptions, and, after a careful examination of the same, we think that there was no erroneous ruling which resulted injuriously to the rights of the defendant. It was proper to allow the plaintiff to show the cost of removal of defective material, and of replacing the same in accordance with the contract. Such cost did not necessarily constitute the measure of damage, but the testimony was properly admitted', to be weighed by the jury in arriving at a conclusion. Kidd v. McCormick, 83 N. Y. 391 . The request to charge as to the rule of damages was properly refused as too general. It was the correct rule as to defective workmanship or poor ma

p. 703
terial, but in this case there was also a claim for material not furnished, and for delay in the performance of the work. Judgment and order denying new trial affirmed, with costs.

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