Krombach v. Teilelbaum

90 N.Y.S. 367

• Court: Appellate Terms of the Supreme Court of New York
• Decided: November 10, 1904
• Status: Published

Opinion

PER CURIAM.

The contract between the plaintiff’s assignor and defendant provided for the performance of specific work in a satisfactory manner and for an agreed compensation. Upon the trial the issue was whether or not the work agreed to be performed was substantially performed. If so, plaintiff was entitled to recover the full amount of the contract price; if not, judgment should have been for the defendant. The agreed price was $110. An additional claim for extra work of $30 was also made, and a credit of $20 paid on account was allowed. The trial court gave judgment for $50, and the only reasonable conclusion at which we can arrive in view of the amount of the recovery is that the court below was not satisfied that plaintiff’s contract had been substantially performed. The unvarying rule of our courts has been to hold a party to substantial or complete performance. Smith v. Cowan, 3 App. Div. 233, 38 N. Y. Supp. 482; Champlin v. Rowley, 13 Wend. 358.

It is unnecessary to consider the other question raised upon this appeal, as for above reasons the recovery herein must be set aside.

Judgment reversed, and new trial ordered, with costs to appellant to abide the event.