Borough Construction Co. v. City of New York
Appellate Division of the Supreme Court of the State of New York
Appeal by the defendant, The City of New York, from a judgment of -the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 27th day of May, 1908, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 30th day of June, 1908, denying the defendant’s motion for a new trial made upon the minutes.
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Appeal by the defendant, The City of New York, from a judgment of -the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 27th day of May, 1908, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 30th day of June, 1908, denying the defendant’s motion for a new trial made upon the minutes. The action is for damages for breach of a contract of the plaintiff with the defendant to build a sewer, by which the plaintiff was compelled to do work and furnish material not covered or required by the contract.
1Opinion of the Court
Gaynor, J.:
The ground of defendant’s liability alleged in the complaint and stated in the charge is not that the plaintiff performed extra work, i, e., work outside of the contract, at the request of the engineer in charge for the defendant under the terms of the contract, and thereby made with him a new contract therefor, which he had no power to make for the defendant, "but that the engineer violated the contract by compelling the plaintiff to do such work against its objection and continued protest, on the wrongful insistence by him that it belonged under the contract, and that its…
2Cases cited4 opinions
- Gearty v. . Mayor, Etc., of New YorkNew York Court of Appeals · 1902
- Purdy v. . City of New YorkNew York Court of Appeals · 1908
- Rochkind v. PerlmanAppellate Division of the Supreme Court of the State of New York · 1908
- City of New York v. . MatthewsNew York Court of Appeals · 1904
3Cited by2 opinions
- Long Island Railroad v. JonesAppellate Division of the Supreme Court of the State of New York · 1912
- F. V. Smith Contracting Co. v. City of New YorkNew York Supreme Court · 1910