Ben Construction Corp. v. Ventre

Appellate Division of the Supreme Court of New York

Ben Construction Corp. v. Ventre

23 A.D.2d 44, 257 N.Y.S.2d 988, 1965 N.Y. App. Div. LEXIS 4477

CourtAppellate Division of the Supreme Court of the State of New York

DecidedApril 8, 1965

StatusPublished

Cited by22 cases

This text of 23 A.D.2d 44 (Ben Construction Corp. v. Ventre) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Ben Construction Corp. v. Ventre, 23 A.D.2d 44, 257 N.Y.S.2d 988, 1965 N.Y. App. Div. LEXIS 4477 (N.Y. Ct. App. 1965).

Pincite

Opinions

Noonan, J.

The defendants were awarded a judgment on counterclaims in the Municipal Court (now City Court) of the City of Syracuse. Upon appeal to the Onondaga County Court the judgment was affirmed. This appeal is from the affirmance of that judgment.

The plaintiff instituted action to recover moneys claimed to be due under a contract for the installation of a swimming pool on the defendants’ property. The counterclaims upon which the defendants succeeded were for rescission seeking the return of moneys paid on the contract and for money damages under section 150 of the Personal Property Law. If it were not for errors in the submission of this case to the jury we would have no difficulty in affirming. In our view the Personal Property Law does not apply to this case. For this law to [45]*45apply the transaction must be one for the sale of property as distinguished from the rendition of services (Perlmutter v. Beth David Hosp., 308 N. Y. 100). In determining whether a contract is for the sale of property or services the main objective sought to be accomplished by the contracting parties must be looked for. Here the written contract itself was for the installation of a swimming pool. Also the obvious objective of the defendants was to have a usable installed swimming pool and this is what they contracted for. This is a contract for work, labor and services, and not a sale (Carlson, Holmes & Bromstad v. Stewart & Co., 147 Misc. 607, affd. 246 App. Div. 522). Thus it was error to submit these counterclaims to the jury under the Personal Property Law. In affirming the County Court concluded the Personal Property Law had no application but reasoned that the court below had “ inherent power ’ ’ to grant the relief sought by and granted to the defendants. We disagree not because the result may not well have been just but rather because when a ease is submitted on an erroneous theory of law the result cannot be permitted to stand.

, In view of this determination the defendants may well desire to amend their answer. If such an application is made the amendment should be allowed.

, The order of Onondaga County Court and judgment of Municipal Court of Syracuse should be reversed and a new trial granted.

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Noonan, J.

The defendants were awarded a judgment on counterclaims in the Municipal Court (now City Court) of the City of Syracuse. Upon appeal to the Onondaga County Court the judgment was affirmed. This appeal is from the affirmance of that judgment.

The plaintiff instituted action to recover moneys claimed to be due under a contract for the installation of a swimming pool on the defendants’ property. The counterclaims upon which the defendants succeeded were for rescission seeking the return of moneys paid on the contract and for money damages under section 150 of the Personal Property Law. If it were not for errors in the submission of this case to the jury we would have no difficulty in affirming. In our view the Personal Property Law does not apply to this case. For this law to [45]*45apply the transaction must be one for the sale of property as distinguished from the rendition of services (Perlmutter v. Beth David Hosp., 308 N. Y. 100). In determining whether a contract is for the sale of property or services the main objective sought to be accomplished by the contracting parties must be looked for. Here the written contract itself was for the installation of a swimming pool. Also the obvious objective of the defendants was to have a usable installed swimming pool and this is what they contracted for. This is a contract for work, labor and services, and not a sale (Carlson, Holmes & Bromstad v. Stewart & Co., 147 Misc. 607, affd. 246 App. Div. 522). Thus it was error to submit these counterclaims to the jury under the Personal Property Law. In affirming the County Court concluded the Personal Property Law had no application but reasoned that the court below had “ inherent power ’ ’ to grant the relief sought by and granted to the defendants. We disagree not because the result may not well have been just but rather because when a ease is submitted on an erroneous theory of law the result cannot be permitted to stand.

, In view of this determination the defendants may well desire to amend their answer. If such an application is made the amendment should be allowed.

, The order of Onondaga County Court and judgment of Municipal Court of Syracuse should be reversed and a new trial granted.

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Bluebook (online)

23 A.D.2d 44, 257 N.Y.S.2d 988, 1965 N.Y. App. Div. LEXIS 4477, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ben-construction-corp-v-ventre-nyappdiv-1965.

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