Legal Opinion

Devlin v. Second Avenue Rail Road

New York Supreme Court

Decided May 2, 1865PublishedCited by 5 opinions

APPEAL from a judgment entered upon tlie report of a referee. The action was brought by the plaintiff to recover of the defendants an amount claimed under an alleged agreement between the parties to the action respecting work, labor and materials to be done and furnished by the plaintiff, in moving or shifting the track of the road of the defendant.

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APPEAL from a judgment entered upon tlie report of a referee. The action was brought by the plaintiff to recover of the defendants an amount claimed under an alleged agreement between the parties to the action respecting work, labor and materials to be done and furnished by the plaintiff, in moving or shifting the track of the road of the defendant. One item of the agreement was to the effect, that the plaintiff would relay the paving stones between the tracks of the rail road. The partial non-performance of that specific item of the agreement is the main occasion of the controversy now…

1Opinion of the Court

By the Court, Geo. G. Barnard, J.

In construing the agreement under which the claim is made by the plaintiff to determine the sufficiency of the excuse which the plaintiff *83presents to justify him in his failure in entire performance, it will he necessary to consider the relations of the parties at the time of its execution. There were really three parties interested in it; the plaintiff, who was "the contractor to do work; the defendant, which owned the franchise and procured the work to be done, and indirectly the city of blew Tork. The city was to establish the grade upon which it would, of…

2Cited by5 opinions

  1. Boyington v. SweeneyWisconsin Supreme Court · 1890
  2. Carey v. GnantNew York Supreme Court · 1871
  3. Hardiman v. Mayor of New YorkAppellate Division of the Supreme Court of the State of New York · 1897
  4. Shailer v. CorbettNew York Supreme Court · 1891
  5. Gerhardt v. AmmanCity of New York Municipal Court · 1885

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