Brendese v. City of Schenectady

Appellate Division of the Supreme Court of New York

Brendese v. City of Schenectady

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

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

DecidedJanuary 7, 1948

StatusPublished

Cited by4 cases

This text of 273 A.D. 831 (Brendese v. City of Schenectady) 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

Brendese v. City of Schenectady, 273 A.D. 831, 75 N.Y.S.2d 884, 1948 N.Y. App. Div. LEXIS 4831 (N.Y. Ct. App. 1948).

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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.)

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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.)

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Bluebook (online)

273 A.D. 831, 75 N.Y.S.2d 884, 1948 N.Y. App. Div. LEXIS 4831, Counsel Stack Legal Research, https://law.counselstack.com/opinion/brendese-v-city-of-schenectady-nyappdiv-1948.

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