Rowe v. Gerry
Appellate Division of the Supreme Court of the State of New York
Reargument of an', appeal by the defendant-, Isabel H. Gerry, from a judgment:of the Supreme Court in favor of the plaintiff and certain of the defendants, entered in the office of the clerk of the county of Westchester on the 26th ,day of ¡November, 1904, upon the- decision of the court-, in an action brought to foreclose a' mechanics’ lien .filed by the plaintiff’s assignor and by the other defendant lienors wherein judgment was entered against the defendant, Isabel H.…
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Reargument of an', appeal by the defendant-, Isabel H. Gerry, from a judgment:of the Supreme Court in favor of the plaintiff and certain of the defendants, entered in the office of the clerk of the county of Westchester on the 26th ,day of ¡November, 1904, upon the- decision of the court-, in an action brought to foreclose a' mechanics’ lien .filed by the plaintiff’s assignor and by the other defendant lienors wherein judgment was entered against the defendant, Isabel H. Gerry.
1Per curiam
This case has been here twice on appeal from judgments for the plaintiff and certain of the defendants (86 App. Div. 349 ; 109 id. 153). The complaint was to recover the final balance due on a building contract, i. e., it was for performance of the contract. The first judgment was reversed for the reason that performance was not shown by the plaintiff, but non-performance, and excuse therefor, whereas a recovery could be had under the complaint only for performance. The second judgment was affirmed because substantial performance, which is performance, was shown and found by the trial court.…
2Cases cited2 opinions
- Glacius v. . BlackNew York Court of Appeals · 1872
- Rowe v. GerryAppellate Division of the Supreme Court of the State of New York · 1903
3Cited by8 opinions
- Shell v. SchmidtCalifornia Court of Appeal · 1958
- Roberts v. SinnottMontana Supreme Court · 1918
- Joseph Musto Sons-Keenan Co. v. Pacific States Corp.California Court of Appeal · 1920
- Lusk Lumber Co. v. Independent Producers ConsolidatedWyoming Supreme Court · 1926
- Finley v. PewWyoming Supreme Court · 1922
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