Lewinson v. Reich — 26 N.Y.S. 82

Majority

p. 82

(6 Misc. Rep. 59.)

LEWINSON et al. v. REICH.

(City Court of New York, General Term.

November 27, 1893.)

Headnote

Contract—Performance—Directing Verdict.

In an action for an installment alleged to be due on a contract for the performance of certain work, the court erred in directing a verdict for plaintiff, where there was a dispute as to whether plaintiff had performed all the work required by the contract, so as to be entitled to the payment.

Appeal from trial term.

Action by Maximilian Lewinson and George A. Just against Lorenz Reich to recover an installment due on contract. Prom a judgment entered on a verdict directed for plaintiffs, defendant appeals.

Reversed.

Argued before VAN WYCK, MCCARTHY, and NEWBURGER, JJ.

Vanderpoel, Cuming & Goodwin, for appellant.

William R. Keese, for respondents.

This action was brought to recover from defendant an installment claimed to be due on a contract between the parties to this action, wherein the plaintiffs contracted to erect certain fire escapes upon property of defendant in a good, workmanlike, and substantial manner, to the satisfaction and under the direction of the building department of the city of New York. The installments were to be paid at different stages of the work. The answer of the defendant denied all of the material allegations of the complaint, and set up a counterclaim for damages by reason of the unskillful manner in which the work was done by plaintiffs. At the close of the testimony, the plaintiff moved for a direction, which was granted. The trial justice erred. There was a dispute as to whether the plaintiffs performed all the work required under the contract before they were entitled to the payment demanded, and

p. 83

that question should have been submitted to the jury for their determination. For these reasons, the judgment must he reversed, and a new trial granted, with costs to abide the event All concur.