Glacius v. . Black
New York Court of Appeals
Appeal from judgment of the General Term of the Supreme Court in the second judicial department, affirming a judgment in favor of plaintiff entered upon the report of a referee. The nature of the action and the facts are set forth sufficiently in the opinion. A partial performance of an indivisible contract does not extinguish a corresponding proportion thereof, unless the benefit of such performance is voluntarily retained by the creditor.
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Appeal from judgment of the General Term of the Supreme Court in the second judicial department, affirming a judgment in favor of plaintiff entered upon the report of a referee. The nature of the action and the facts are set forth sufficiently in the opinion. A partial performance of an indivisible contract does not extinguish a corresponding proportion thereof, unless the benefit of such performance is voluntarily retained by the creditor. (Civil Code, § 629; Sedgwick on Damages, 212, 215, 216, 222, note 1, 221; Ladue v. Seymour, 24 Wend., 60.; Moffet v. Sackett, 18 N. Y., 527; Davis v.…
1Opinion of the Court
Church, Oh. J.
This is an action upon a claim filed under the mechanics’ lien law. The contractors are builders, and contracted to make certain alterations and repairs upon the defendant’s house for $1,326; one-half to be paid when the lath were on, and the balance when the work was done completely and accepted. The work consisted principally of taking off an old peak roof and substituting a French or Mansard roof and finishing off the upper story, and making other repairs in the interior of the house. The case was tried before a referee, and is very voluminous. The original report contains…
2Cases cited3 opinions
- Smith v. . BradyNew York Court of Appeals · 1858
- Sinclair v. TallmadgeNew York Supreme Court · 1861
- Wyckoff v. . MeyersNew York Court of Appeals · 1870
3Cited by112 opinions
- Hawkins v. United StatesSupreme Court of the United States · 1877
- Mercantile Trust Co. v. HenseySupreme Court of the United States · 1907
- Heckmann v. . PinkneyNew York Court of Appeals · 1880
- Crouch v. . GutmannNew York Court of Appeals · 1892
- Phillip v. . GallantNew York Court of Appeals · 1875
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