Elting v. Dayton
New York Supreme Court
Appeal from special term, New York county. Action by Cornelius W. H. Biting against Charles W. Dayton. From an order denying leave to amend the complaint, plaintiff appeals. Reversed.
Read the full summary
Appeal from special term, New York county. Action by Cornelius W. H. Biting against Charles W. Dayton. From an order denying leave to amend the complaint, plaintiff appeals. Reversed. February 25,1885, the plaintiff, a builder, entered into a contract with the defendant, the owner of five houses, to repair them, according to plans and specifications, for $9,726, on or before April 20, 1885. The work was not in fact completed until May 15, 18ti5. The defendant paid towards the contract price, March 25, 1885, $2,000; April 10, 1885, $2,000; May 8, 1885. $2,000. August 25, 1885, this action was…
1Opinion of the CourtFollett, J.
“The court may, upon the trial, or at any other stage of the action, before or after judgment, in furtherance of justice, and on such terms as it deems just, amend any pleading * * * by inserting an allegation material to the ease.” Section 723, Code Civil Proc. After this case had been fully tried on the merits, the referee found that the owner of the buildings, by ordering additional work and changing the plans, prevented the plaintiff from performing the contract within the time limited, and had waived strict performance. If this is true,— and for the purposes of this motion we must deem…
2Cited by6 opinions
- Bainum v. American Bridge Co. of New YorkU.S. Circuit Court for the District of Western Pennsylvania · 1905
- Barnum v. WilliamsAppellate Division of the Supreme Court of the State of New York · 1904
- People ex rel. Radeziwon v. City of BuffaloNew York Supreme Court · 1909
- Elting v. DaytonNew York Supreme Court · 1894
- Miller v. KetchamAppellate Terms of the Supreme Court of New York · 1900
1 more not listed; retrieve them via the Exa API.