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Tri-Borough Contracting Co. v. R. V. Wechsler Realty Co.

147 N.Y.S. 971 Court N.Y. App. Div. Decision date 1914-05-29 English

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p. 971
TRI-BOROUGH CONTRACTING CO. v. R. V. WECHSLER REALTY CO. et al.
(Supreme Court, Appellate Division, Second Department.
May 29, 1914)

Headnote

Contracts (§ 306[1] )—Breach—Completion by Other Party—Liability of Contractor.
Where defendant, after default of a contractor, undertook to complete the work, there was no presumption that the contract price was sufficient to meet the cost of completion.
[Ed. Note.—For other cases, see Contracts, Cent. Dig. §§ 1528-1533; Dec. Dig. § 306.*]
Appeal from Special Term, Queens County.
Action by the Tri-Borough Contracting Company against the R. V. Wechsler Realty Company and others. From a judgment dismissing plaintiff’s complaint, he appeals; and from a judgment dismissing the named defendant’s counterclaim, it appeals.
Judgment affirmed as to plaintiff, and reversed, and new trial granted, as to the appealing defendant.
Argued before JENKS, P. J., and BURR, THOMAS, CARR, and RICH, JJ.
Meyer Levy, of New York City, for plaintiff.
Abraham L. Gutman, of New York City (John Frankenheimer, of New York City, on the brief), for defendant R. V. Wechsler Realty

This action is by contractor against owner for the foreclosure of a mechanic’s lien. The Special Term dismissed the plaintiff and the defendant on its counterclaim. Both parties appeal.

■We think that the judgment should be affirmed as to the plaintiff, and should he reversed as to the defendant. The opinion of the learned Special Term shows that the disposition of the defendant was made upon the ground that it “took over the job,” but “finished the work more expensively than called for by the specifications.” We think that the evidence did not justify this conclusion. The defendant gave proof sufficient to establish a prima facie case on the counterclaim, and such case was not affected by any proof adduced by the plaintiff. There is no presumption that the contract price was sufficient to meet the cost of completion by the defendant. Brainard v. County of Kings, 155 N. Y. 538 , 50 N. E. 263 . And the proper inquiry is: What was the amount actually expended in the necessary completion of the contract? Martin v. Flahive, 112 App. Div. 347 , 98 N. Y. Supp. 577 ; Zimmermann v. Jourgensen, 14 N. Y. Supp. 548 .[1] The court probably checked the defendant in the full development of its case on the counterclaim by a ruling in its favor which was not excepted to.

The judgment is affirmed, with costs, as to the plaintiff’s cause of action, and reversed as to the defendant’s counterclaim, and a new trial granted upon that issue; costs to abide the final award of costs.

† † Reported in full in the New York Supplement; reported as a memorandum decision without opinion in 60 Hun, 578 .

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