Eisenberg Industrial Contracting Co. v. Baumwall

277 A.D.2d 1128

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 11, 1950
• Status: Published

Opinion

Appeal from a judgment, as amended, in a consolidated action. The Eisenberg Industrial Contracting Company brought an action against Baumwall et al., doing business under the name Paramount Yam Dyers, in contract and on quantum meruit for work, labor and services and materials furnished in connection with certain machinery. “Paramount” brought an action against “ Eisenberg ” based on rescission of a contract for the money paid thereunder and under a separate count for damages on the contract. The actions were consolidated and after a jury trial a judgment was had in favor of Baumwall et al. in the sum of $1,253.58. Judgment, as amended, reversed on the law and a new trial granted, with costs to abide the event, (a) The parol proof in respect of the scope and meaning of the contracts was properly received, (b) The alleged proof as to damages was erroneously received. The error was prejudicial. The prejudicial character of the error appears from the statement of the foreman of the jury. He first allocated the $1,500 award to a return on the theory of rescission of the money paid on the so-called No. 2 machine. But later he stated it was an award for “damages, material used in trying to operate that machine.” His first statement would have permitted a holding that the error in respect of damages was not prejudicial, but his second statement precludes such a view. It cannot be determined whether the award was intended to be allocated to the rescission cause of action or in whole or part to the damage cause of action set out in the pleading of “Paramount.” Nolan, P. J., Carswell, Adel, Sneed and Wenzel, JJ;, concur.