George A. Murray Co. v. Johnson Transportation, Inc.

Appellate Division of the Supreme Court of New York

George A. Murray Co. v. Johnson Transportation, Inc.

43 A.D.2d 537, 350 N.Y.S.2d 338, 1973 N.Y. App. Div. LEXIS 3109

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

DecidedNovember 20, 1973

StatusPublished

This text of 43 A.D.2d 537 (George A. Murray Co. v. Johnson Transportation, Inc.) 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

George A. Murray Co. v. Johnson Transportation, Inc., 43 A.D.2d 537, 350 N.Y.S.2d 338, 1973 N.Y. App. Div. LEXIS 3109 (N.Y. Ct. App. 1973).

Pincite

Opinion

Order, Supreme Court, New York County, entered on July 10, 1972, insofar as it granted plaintiff’s motion for summary judgment to the extent of directing an assessment of damages upon the basis of the servvices rendered by third parties, and judgment of said court entered on September 22, 1972, unanimously reversed, on the law, the assessment of damages, together with the judgment entered thereon vacated, and the matter remanded for trial. Appellant shall recover of respondent $60 costs and disbursements of these appeals. Summary judgment, on this submission, is not supportable. We have before, us no formal contract. And the defendant’s letter clearly indicates the expectation that the formalization of a contract would be subsequent to a mutual agreement as “to the preliminary inspection, development, feasibility and fees.” It does not appear that plaintiff ever did seek or obtain approval of the costs or fees incurred for preliminary work or services. Thus, a threshold issue of fact is visible, whether plaintiff obtained or d-jfendant consented, expressly or tacitly, to the services performed, and which form the basis of the first cause of action. Another discernible issue is whether plaintiff’s procurai of financing for the contemplated construction was a condition precedent to any obligation of performance by defendant. Summary judgment was prematurely granted. Concur — McGivern, J. P., Murphy, Lane, Steuer and Capozzoli, JJ.

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Order, Supreme Court, New York County, entered on July 10, 1972, insofar as it granted plaintiff’s motion for summary judgment to the extent of directing an assessment of damages upon the basis of the servvices rendered by third parties, and judgment of said court entered on September 22, 1972, unanimously reversed, on the law, the assessment of damages, together with the judgment entered thereon vacated, and the matter remanded for trial. Appellant shall recover of respondent $60 costs and disbursements of these appeals. Summary judgment, on this submission, is not supportable. We have before, us no formal contract. And the defendant’s letter clearly indicates the expectation that the formalization of a contract would be subsequent to a mutual agreement as “to the preliminary inspection, development, feasibility and fees.” It does not appear that plaintiff ever did seek or obtain approval of the costs or fees incurred for preliminary work or services. Thus, a threshold issue of fact is visible, whether plaintiff obtained or d-jfendant consented, expressly or tacitly, to the services performed, and which form the basis of the first cause of action. Another discernible issue is whether plaintiff’s procurai of financing for the contemplated construction was a condition precedent to any obligation of performance by defendant. Summary judgment was prematurely granted. Concur — McGivern, J. P., Murphy, Lane, Steuer and Capozzoli, JJ.

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Bluebook (online)

43 A.D.2d 537, 350 N.Y.S.2d 338, 1973 N.Y. App. Div. LEXIS 3109, Counsel Stack Legal Research, https://law.counselstack.com/opinion/george-a-murray-co-v-johnson-transportation-inc-nyappdiv-1973.