St. George Contracting Co. v. City of New York
New York Court of Appeals
Appeal from a judgment of the Appellate Division of the Supreme Court in the second judicial department, entered June 12, 1911, affirming a judgment in favor of defendant entered upon a dismissal of the complaint by the court at a Trial Term without a jury. The nature of the action and the facts, so far as material, are stated in opinions.
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Appeal from a judgment of the Appellate Division of the Supreme Court in the second judicial department, entered June 12, 1911, affirming a judgment in favor of defendant entered upon a dismissal of the complaint by the court at a Trial Term without a jury. The nature of the action and the facts, so far as material, are stated in opinions. Plaintiff was entitled to pay for the excavation, measured according to the contract terms, even though part of the excavation was done by the railroad company and not by the plaintiff. (Gillet v. Bank of America, 160 N. Y. 549; Russell v. Allerton, 108 N.…
1Opinion of the Court
Cullen, Oh. J.
I concur in the reversal of this judgment. I am of opinion that on the facts found the plaintiff was entitled to a recovery against the defendant for a breach of the contract, but I wholly dissent from the rule of damages laid down hy my brother, Collin, J. Under the contract the plaintiff’s assignor was not to be paid a gross sum for the improvement but unit prices for the various kinds of work that he might- do in the performance of the contract. Concededly the 1,175 yards of excavation for which the plaintiff now seeks to recover was "never done by it, but by a third party,…
2Cited by2 opinions
- American Pipe & Construction Co. v. Westchester CountyCourt of Appeals for the Second Circuit · 1923
- Uvalde Contracting Co. v. City of New YorkAppellate Division of the Supreme Court of the State of New York · 1914