Lesniak v. Chant

4 A.D.2d 1007, 167 N.Y.S.2d 767, 1957 N.Y. App. Div. LEXIS 3957

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 15, 1957
• Status: Published

Opinion

Judgment reversed on the law and facts and a new trial granted, with costs to the appellant to abide the event. Memorandum: The action is for damages which plaintiff claims he sustained because defendant breached a contract to erect a roof on a building owned by plaintiff. The defendant conceded that the work was not performed in accordance with good roofing practices but contended it was done in exact accordance with instructions given by the plaintiff, who was a general contractor, despite the protests of defendant as to. such instructions. This was the main controversy and the principal issue for the jury. After the court had charged that it was the duty of the defendant to perform the work in a good and workmanlike manner, the defendant requested a charge that if the jury should find that the plaintiff gave orders to the defendant as to the manner of performing the work and that defendant followed those orders, plaintiff could not be heard to complain about the manner of performance. This request was denied and defendant excepted. The failure to so charge coupled with the prior charge as to good and workmanlike manner, in effect, withdrew this issue from the jury and constituted reversible error. Furthermore, the court charged, over exception, that if the jury found for plaintiff they should award “ the measure of damages you believe he is entitled to”. There was no explanation as to what that measure should be, thus leaving to the jury the application of the law of damages. All concur. (Appeal from a judgment of Erie Trial Term for plaintiff in an action for damages alleged to have been sustained by plaintiff by reason of a breach of contract.) Present—Vaughan, J. P., Kimball, Williams, Bastow and Goldman, JJ.