Bender Press, Inc. v. County of Orange

Appellate Division of the Supreme Court of New York

Bender Press, Inc. v. County of Orange

254 A.D. 675, 3 N.Y.S.2d 264, 1938 N.Y. App. Div. LEXIS 7102

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

DecidedApril 1, 1938

StatusPublished

This text of 254 A.D. 675 (Bender Press, Inc. v. County of Orange) 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

Bender Press, Inc. v. County of Orange, 254 A.D. 675, 3 N.Y.S.2d 264, 1938 N.Y. App. Div. LEXIS 7102 (N.Y. Ct. App. 1938).

Pincite

Opinion

Appeal by the defendant from a judgment of the Supreme Court, Orange county, in an action on a contract for the publication of a notice of tax sale, the publication of which, plaintiff alleges, was not completed for the reason that the defendant refused to accept performance and canceled the contract. Judgment in favor of the plaintiff modified by reducing the amount of the recovery from $5,372.08 to $1,519.19, with interest from April 30, 1935, together with costs and disbursements in the trial court, and, as thus modified, unanimously affirmed, without costs. Findings seventh to thirteenth, both inclusive, reversed and conclusions second, fifth and sixth disapproved. New findings and conclusions will be made. In our opinion, recovery on the theory of breach of contract is not warranted by the proof. Plaintiff is entitled to recover on a quantum meruit basis only. Where a public officer is given, by statute, the power to order work to be performed or goods to be delivered, irrespective of what contract he may make, or attempt to make, the county, upon audit by its board, may, under such agreement by such officer, be held liable only for the reasonable value of that which the county received pursuant to the order. The rule is otherwise where, by [676]*676express direction of the board, fixing and approving the details thereof, a contract is entered into by a county. Here there was no audit. The board of supervisors refused to audit and rejected the contract and claim under it. There was but one publication of the notice. Carswell, Davis, Adel and Close, JJ., concur; Lazansky, P. J., concurs in result. Settle order on notice.

Free access — add to your briefcase to read the full text and ask questions with AI

Appeal by the defendant from a judgment of the Supreme Court, Orange county, in an action on a contract for the publication of a notice of tax sale, the publication of which, plaintiff alleges, was not completed for the reason that the defendant refused to accept performance and canceled the contract. Judgment in favor of the plaintiff modified by reducing the amount of the recovery from $5,372.08 to $1,519.19, with interest from April 30, 1935, together with costs and disbursements in the trial court, and, as thus modified, unanimously affirmed, without costs. Findings seventh to thirteenth, both inclusive, reversed and conclusions second, fifth and sixth disapproved. New findings and conclusions will be made. In our opinion, recovery on the theory of breach of contract is not warranted by the proof. Plaintiff is entitled to recover on a quantum meruit basis only. Where a public officer is given, by statute, the power to order work to be performed or goods to be delivered, irrespective of what contract he may make, or attempt to make, the county, upon audit by its board, may, under such agreement by such officer, be held liable only for the reasonable value of that which the county received pursuant to the order. The rule is otherwise where, by [676]*676express direction of the board, fixing and approving the details thereof, a contract is entered into by a county. Here there was no audit. The board of supervisors refused to audit and rejected the contract and claim under it. There was but one publication of the notice. Carswell, Davis, Adel and Close, JJ., concur; Lazansky, P. J., concurs in result. Settle order on notice.

Cite This Page — Counsel Stack

Bluebook (online)

254 A.D. 675, 3 N.Y.S.2d 264, 1938 N.Y. App. Div. LEXIS 7102, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bender-press-inc-v-county-of-orange-nyappdiv-1938.