Legal Opinion

McManus v. . Gavin

New York Court of Appeals

Decided April 8, 1879PublishedCited by 6 opinions

Appeal from judgment of the General Term of the Court of Common Pleas, in and for the city and county of New York, affirming a judgment in favor of plaintiff, entered upon a verdict. The nature of the action and the facts are set forth sufficiently in the opinion. Section 33 of chapter 134 of Laws of 1851 is not applicable to this case. It only has reference to the measurement of lands,.not to the material taken from an excavation. (2 Burr. L. Dict., 127, 128.)

1Opinion of the Court

Church, Ch. J.

The action was brought to recover for a quantity of rock excavation done by the plaintiff for the defendants in excavating two cellars. The contract between the parties provided that the amount of yards was to be tested by a surveyor, agreeable to both parties, and the final payment was to bo made when the work was completed, “ the amount of work done to be determined by the surveyor’s estimate.” There was some evidence given of the making of estimates by a surveyor but the certificates do •not appear in the record, nor does it distinctly appear that they were offered in…

2Cited by6 opinions

  1. Lester v. Otis Elevator Co.Appellate Division of the Supreme Court of the State of New York · 1915
  2. Arthun v. City of SeattleWashington Supreme Court · 1926
  3. Isear v. BursteinNew York Supreme Court · 1893
  4. Lester v. Otis Elevator Co.Appellate Division of the Supreme Court of the State of New York · 1915
  5. Manchester v. Van BruntNew York Court of Common Pleas · 1893

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