Rosenweig v. Von Bauer — 65 N.Y.S. 718

Majority

p. 718

ROSENWEIG v. VON BAUER et al.

(Supreme Court, Appellate Term.

July 6, 1900.)

Headnote

Contract—Fire Escapes—Failure to Complete—Recovery or Price.

Where the evidence, in an action for the price of fire escapes to be constructed, showed that the price was not to be paid until the escapes were completed, and that the balconies which were a part of the escapes had not been completed, a judgment for plaintiff could not be sustained.

Appeal from municipal court, borough of Manhattan.

Action by Joseph Rosenweig against Annie C. Von Bauer and another on contract. Judgment for plaintiff, and defendants appeal.

Reversed.

Argued before TRUAX, P. J., and SCOTT and DUGRO, JJ.

W. S. Maddox, for appellants.

J. Bogart, for respondent.

The evidence is conflicting as to the terms of the contract in regard to payment. The plaintiff testified that as soon as the fire escapes were done he was to get $100. One of the defendants testified to the same effect, except- that the payment was to be $200. A witness called by the defendants testified that a payment of $200 was to be made after the balconies were completed. All the witnesses agreed that the balconies were part of the fire escapes, and were incomplete at the time the plaintiff stopped work, in that the floors were not in. The plaintiff was not entitled to a payment upon any of these versions of the contract, and, as there was no evidence of the reasonable value of the work done and materials furnished, the case is without evidence to sustain the judgment.

Wherefore the judgment is reversed, and a new trial ordered, with costs to appellants to abide event.