Donohue v. Mayor of New York
New York Supreme Court
Ajppeal from a judgment in favor of tbe plaintiff, entered upon tbe report of a referee. Tbis action was brought by plaintiff, as assignee of Patrick Handibode, to recover a balance of $4,547.40, alleged to be due on a contract made November 6, 1872, between tbe trustees of tbe town of Morrisania and said Handibode, for grading One Hundred and Thirty-sixth street.
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Ajppeal from a judgment in favor of tbe plaintiff, entered upon tbe report of a referee. Tbis action was brought by plaintiff, as assignee of Patrick Handibode, to recover a balance of $4,547.40, alleged to be due on a contract made November 6, 1872, between tbe trustees of tbe town of Morrisania and said Handibode, for grading One Hundred and Thirty-sixth street. Tbe defendant set up in its answer, as a counter-claim, tbat plaintiff, at tbe time of tbe indebtedness alleged, was tbe assignee of said Handibode, in another contract made between tbe same parties for grading One Hundred and…
1Opinion of the Court
Gilbert, J.:
The case clearly shows that the plaintiff received the over-payment which is the subject of the counter-claim, and the referee should have so found. The error arose from the fact that the engineer in charge of the work done by the plaintiff and his assignor, certified seventy-five cents instead of fifty cents per yard for filling, the latter sum being the contract-price. The engineer had no authority to give a certificate, nor the board of trastees to make a payment in excess of the contract-price. They were respectively mere agents of the corporation, and their principal was not…
2Cases cited4 opinions
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- Elwood v. DeifendorfNew York Supreme Court · 1848
- Seybel v. . National Currency BankNew York Court of Appeals · 1873
- McSpedon v. Troy City BankNew York Court of Appeals · 1869