Marcus v. Nelson — 119 N.Y.S. 1085

Majority

p. 1085

MARCUS v. NELSON.

(Supreme Court, Appellate Term.

December 22, 1909.)

Headnote

Contracts (§ 282*)—Performance—Satisfaction of Contracting Party.

Though plaintiff agreed to paint and kalsomine certain rooms to the satisfaction of defendant’s agent, the agent could not arbitrarily reject the work on the ground that it was not satisfactory to him, if it was in - fact well done; it not being of such nature as to permit the exercise of individual taste.

[Ed. Note.—For other cases, see Contracts, Cent. Dig. §§ 1284-1289; Dec. Dig. § 282.*]

♦For other cases see same topic & § number in Dec. & Am. Digs. 1907 to date, & Rep’r Indexes

Appeal from Municipal Court, Borough of Manhattan, Seventh District.

Action by Louis Marcus against Charles W. Nelson; From a judgment for plaintiff, defendant appeals.

Affirmed.

Argued before GIEGERICH, GOFF, and LEHMAN, JJ.

Arthur H. Slack, for appellant.

Charles Bisberg, for respondent.

Even conceding that the plaintiff’s agreement that the work was to be done to the satisfaction of the defendant’s agent applied to all that was contracted for, the fact remains that there was a conflict in the evidence as to whether the work was done in a workmanlike and proper manner. It was competent for the trial judge to find in favor of the plaintiff upon this conflict. The work in question consisted of painting and kalsomining rooms in a flat or apartment, and evidently was not of a character where individuality of taste or fancy was involved. If as a matter of fact the work was well done, as the judgment indicates the trial court found it to be, the defendant’s agent could not arbitrarily or capriciously assert that he was dissatisfied.

The errors.complained of in the rulings on evidence, if any were committed, were insignificant and not of such character as to affect the result.

The judgment should be affirmed, with costs. All concur.