Brendese v. City of Schenectady

273 A.D. 831, 75 N.Y.S.2d 884, 1948 N.Y. App. Div. LEXIS 4831

Opinion

Appeal from a judgment of the Schenectady Special Term which dismissed plaintiff’s complaint in an action to recover the amount of a deposit made in connection with a bid to perform public work in that city. Judgment affirmed, without costs. Hill, P. J., Foster and Deyo, JJ., concur; Russell, J., dissents, in the following memorandum in which Heffernan, J., concurs: The repeated extensions of time granted to the contractor by the respondents for the purpose of securing a performance bond were a waiver of the laches, and therefore the respondents could not recover liquidated damages. The respondents having failed to allege material damages caused by delay, they are barred from the recovery of same. (Marcus v. Village of Mamaroneck, 283 N. Y. 325, 332.) The minds of the parties never met upon a contract price based upon the real and intended bids submitted on the projects. In rescission no contract remains, and there was “ in the eye of the law no meeting of minds at all. Hence the court may rescind the apparent contract for the mistake of one party only ° # (Harper, Inc., v. City of Newburgh, 159 App. Div. 695, 696-697.)