Hyperlawhypertext legal database Allen v. City of Oneida 136 N.Y.S. 273

← Cases

Allen v. City of Oneida

136 N.Y.S. 273 Court N.Y. App. Div. Decision date 1912-06-27 English

Decision Majority — PER CURIAM. · Dissent — SMITH, P. J.

Contents
p. 273
ALLEN et al. v. CITY OF ONEIDA.
(Supreme Court, Appellate Division, Third Department.
June 27, 1912.)

Headnote

Appeal from Trial Term, Madison County.
Action by Theodore D. Allen and another against the City of Oneida. Judgment for plaintiffs, and defendant appeals.
Affirmed.
Argued before SMITH, P. J., and KELLOGG, HOUGHTON, and BETTS, JJ.
D. C. Burke and James Moore, for appellant.
H. W. Coley and E. L. Hunt, for respondent.

Judgment and order affirmed, with costs. All concur, except SMITH, P. J., dissenting in part in memorandum.

(dissenting in part). The contract signed- is unambiguous. Plaintiff has recovered for extra work in doing work which was within the terms of the contract, on the ground that before the signing of the contract he was assured by the city authorities that a strict performance thereof would not be required. This holding seems to be unjustified, either upon principle or authority. Whatever right the plaintiff might have for reformation of the contract, until the contract is reformed he has no claim for additional compensation for work specifically required thereby. The judgment, therefore, so far as it awards additional compensation for work upon the reservoir site in taking the roots out from the land, is in my judgment unauthorized, and should be reversed.