Elias v. Coleman & Krause, Inc.

Appellate Terms of the Supreme Court of New York

Elias v. Coleman & Krause, Inc.

137 N.Y.S. 883

CourtAppellate Terms of the Supreme Court of New York

DecidedNovember 8, 1912

StatusPublished

This text of 137 N.Y.S. 883 (Elias v. Coleman & Krause, Inc.) is published on Counsel Stack Legal Research, covering Appellate Terms of the Supreme Court of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Elias v. Coleman & Krause, Inc., 137 N.Y.S. 883 (N.Y. Ct. App. 1912).

Pincite

Opinion

BIJUR, J.

The only question raised on this appeal is whether plaintiff had sufficiently proved performance of his contract, which was to cut and install glass in frames to be furnished by defendant. The record certainly discloses a prima facie case of substantial performance.

The learned court below seems to have been of opinion that, under a pleading alleging performance, proof of substantial performance was not sufficient, but that, in such case, waiver of the part unperformed must be pleaded and proved. Plaintiff, however, claimed no waiver, and the law is that, upon substantial performance, plaintiff is entitled to recover the contract price, less an allowance for the negligible portion of the work which was not done.

The judgment should be reversed, and a new trial ordered, with costs to appellant to abide the event. All concur.

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BIJUR, J.

The only question raised on this appeal is whether plaintiff had sufficiently proved performance of his contract, which was to cut and install glass in frames to be furnished by defendant. The record certainly discloses a prima facie case of substantial performance.

The learned court below seems to have been of opinion that, under a pleading alleging performance, proof of substantial performance was not sufficient, but that, in such case, waiver of the part unperformed must be pleaded and proved. Plaintiff, however, claimed no waiver, and the law is that, upon substantial performance, plaintiff is entitled to recover the contract price, less an allowance for the negligible portion of the work which was not done.

The judgment should be reversed, and a new trial ordered, with costs to appellant to abide the event. All concur.

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Bluebook (online)

137 N.Y.S. 883, Counsel Stack Legal Research, https://law.counselstack.com/opinion/elias-v-coleman-krause-inc-nyappterm-1912.