Bennett Excavators Corp. v. Lasker-Goldman Corp.

21 A.D.2d 877, 251 N.Y.S.2d 812, 1964 N.Y. App. Div. LEXIS 3382

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: July 1, 1964
• Status: Published

Opinion

In an action by a subcontractor, Bennett Excavators Corp., against the general contractor, LaskerGoldman Corporation, to recover for work, labor and services, and for materials furnished (first cause of action), and to recover damages for breach of contract (second cause of action), in which: (a) the defendant Lasker corporation interposed a counterclaim against plaintiff to recover damages for breach of contract and a third-party complaint against Standard Accident Insurance Company, based upon its liability under a performance bond; and (b) the said insurer Standard interposed a cross claim against the plaintiff subcontractor, together with a third-party complaint against its two individual officers based on their liability under an indemnitj'' agreement, the general contractor, defendant Lasker corporation, appeals from a judgment of the Supreme Court, Kings County, entered September 27, 1963 after trial, upon a jury’s verdict in the plaintiff’s favor on both causes of action and dismissing the counterclaim and both third-party complaints. Judgment reversed on the law and the facts; complaint dismissed on the law; action severed as to the counterclaim, the cross claim and the third-party complaints; and new trial granted as to all the issues raised by the pleadings in response to such counterclaim, cross claim and third-party complaints, with costs to abide the event. We find no evidence in the record to support the jury’s verdict. In the interests of justice a new trial is granted with respect to the counterclaim, the cross claim and the third-party claims. Ughetta, Acting P. J., Kleinfeld, Christ, Hill and Rabin, JJ., concur.