Flagg v. Schoenleben

Appellate Terms of the Supreme Court of New York

Flagg v. Schoenleben

108 N.Y.S. 1004

CourtAppellate Terms of the Supreme Court of New York

DecidedMarch 5, 1908

StatusPublished

This text of 108 N.Y.S. 1004 (Flagg v. Schoenleben) 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

Flagg v. Schoenleben, 108 N.Y.S. 1004 (N.Y. Ct. App. 1908).

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Opinions

GIEDERSLEEVE,.P. J.

The plaintiff entered into an agreement with the defendants whereby he undertook to excavate a foundation for a house, move and place thereon a house then located at another place, and repair injuries caused by moving, all for the sum of $1,-535. Subsequently extra work was contracted for between the same parties amounting to $330. The two contracts were treated as one-by the parties, and as payments were made they were applied on account of both as the work progressed. The defense claimed that the-plaintiff had not completed the contracts, and therefore was not entitled to the balance sued for until such completion. The plaintiff proceeded upon the theory of substantial performance, claiming that the omissions or deviations from the contract were slight and unimportant. The learned trial justice agreed with the contention of the plaintiff, and, after hearing all the testimony, fixed the value of the-work omitted at $30, deducted this sum from the balance unpaid under the contracts, and gave plaintiff judgment for $147.75. The-plaintiff testified he offered to complete the work and was not al[1005]*1005lowed to do so. The judgment violates no principle of law, is warranted by the evidence, and should not be disturbed.

The judgment should be affirmed, with costs.

BISCHOFF, J., concurs.

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GIEDERSLEEVE,.P. J.

The plaintiff entered into an agreement with the defendants whereby he undertook to excavate a foundation for a house, move and place thereon a house then located at another place, and repair injuries caused by moving, all for the sum of $1,-535. Subsequently extra work was contracted for between the same parties amounting to $330. The two contracts were treated as one-by the parties, and as payments were made they were applied on account of both as the work progressed. The defense claimed that the-plaintiff had not completed the contracts, and therefore was not entitled to the balance sued for until such completion. The plaintiff proceeded upon the theory of substantial performance, claiming that the omissions or deviations from the contract were slight and unimportant. The learned trial justice agreed with the contention of the plaintiff, and, after hearing all the testimony, fixed the value of the-work omitted at $30, deducted this sum from the balance unpaid under the contracts, and gave plaintiff judgment for $147.75. The-plaintiff testified he offered to complete the work and was not al[1005]*1005lowed to do so. The judgment violates no principle of law, is warranted by the evidence, and should not be disturbed.

The judgment should be affirmed, with costs.

BISCHOFF, J., concurs.

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Bluebook (online)

108 N.Y.S. 1004, Counsel Stack Legal Research, https://law.counselstack.com/opinion/flagg-v-schoenleben-nyappterm-1908.