Iannace v. John A. Johnson & Sons, Inc.

Appellate Division of the Supreme Court of New York

Iannace v. John A. Johnson & Sons, Inc.

41 A.D.2d 665, 341 N.Y.S.2d 296, 1973 N.Y. App. Div. LEXIS 5092

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

DecidedFebruary 20, 1973

StatusPublished

This text of 41 A.D.2d 665 (Iannace v. John A. Johnson & Sons, 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

Iannace v. John A. Johnson & Sons, Inc., 41 A.D.2d 665, 341 N.Y.S.2d 296, 1973 N.Y. App. Div. LEXIS 5092 (N.Y. Ct. App. 1973).

Pincite

Opinion

In an action inter alla to recover a balance due upon a contract, defendants appeal from (a) a judgment of the. Supreme Court, Westchester County, entered February 1, 1972, after a nonjury trial, in favor of plaintiff, except the portion of the judgment which dismissed plaintiff’s second cause of action, and (b) from an order of -the same court, entered March 14, 1972, which denied defendant’s motion inter alla to set aside and correct the trial court’s decision and the judgment. Judgment modified, on the facts, by reducing the principal [666]*666award to plaintiff from $38,006.22 to $26,206.28 and accordingly reducing the interest thereon and the total recovery. As so modified, judgment affirmed insofar as appealed from. Appeal from order entered March 14, 1972 dismissed as academic. Appellants are. awarded a single bill of costs to cover both appeals. In our opinion, upon the weight of the credible evidence adduced at the trial, plaintiff is entitled to recover the following sums for the work performed prior to the termination of his services: topsoil stripping, $100; excavation and backfill, $16,200; and rock excavation, $1,920. We find that plaintiff is not, entitled to recover for services performed in connection with pumping and trench excavation. We are in agreement with Trial Term as to its findings in connection with the value of plaintiff’s services for clearing, general grading, exploratory work, borings, extra labor and dowel holes. Hopkins, Acting P. J., Latham, Gulotta, Brennan and Benjamin, JJ., concur.

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In an action inter alla to recover a balance due upon a contract, defendants appeal from (a) a judgment of the. Supreme Court, Westchester County, entered February 1, 1972, after a nonjury trial, in favor of plaintiff, except the portion of the judgment which dismissed plaintiff’s second cause of action, and (b) from an order of -the same court, entered March 14, 1972, which denied defendant’s motion inter alla to set aside and correct the trial court’s decision and the judgment. Judgment modified, on the facts, by reducing the principal [666]*666award to plaintiff from $38,006.22 to $26,206.28 and accordingly reducing the interest thereon and the total recovery. As so modified, judgment affirmed insofar as appealed from. Appeal from order entered March 14, 1972 dismissed as academic. Appellants are. awarded a single bill of costs to cover both appeals. In our opinion, upon the weight of the credible evidence adduced at the trial, plaintiff is entitled to recover the following sums for the work performed prior to the termination of his services: topsoil stripping, $100; excavation and backfill, $16,200; and rock excavation, $1,920. We find that plaintiff is not, entitled to recover for services performed in connection with pumping and trench excavation. We are in agreement with Trial Term as to its findings in connection with the value of plaintiff’s services for clearing, general grading, exploratory work, borings, extra labor and dowel holes. Hopkins, Acting P. J., Latham, Gulotta, Brennan and Benjamin, JJ., concur.

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Bluebook (online)

41 A.D.2d 665, 341 N.Y.S.2d 296, 1973 N.Y. App. Div. LEXIS 5092, Counsel Stack Legal Research, https://law.counselstack.com/opinion/iannace-v-john-a-johnson-sons-inc-nyappdiv-1973.