Leutke v. Federal Brass & Bronze Co.

Appellate Division of the Supreme Court of New York

Leutke v. Federal Brass & Bronze Co.

143 N.Y.S. 1127

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

DecidedNovember 13, 1913

StatusPublished

This text of 143 N.Y.S. 1127 (Leutke v. Federal Brass & Bronze Co.) 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

Leutke v. Federal Brass & Bronze Co., 143 N.Y.S. 1127 (N.Y. Ct. App. 1913).

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Opinion

BIJUR, J.

Plaintiff sues for certain work done under a contract, to be found in three letters exchanged between the parties. These letters required the work to be “bronze electroplated to match sample.” Plaintiff’s bill of particulars says: “The rail (namely, the work contracted for) was completed by the plaintiff.” Although the plaintiff thus plainly sued as upon full performance, he seeks to sustain the judgment on the theory of excuse for nonperformance which was not pleaded. He admitted that the work was not electro-plated. The issue of excusable- nonperformance was not presented by the pleadings, and was injected only incidentally and accidentally into the trial. If it can be said to have been litigated, the burden was certainly not sustained by the plaintiff. Judgment reversed, and new trial ordered, with costs to appellant to abide the event. All concur.

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BIJUR, J.

Plaintiff sues for certain work done under a contract, to be found in three letters exchanged between the parties. These letters required the work to be “bronze electroplated to match sample.” Plaintiff’s bill of particulars says: “The rail (namely, the work contracted for) was completed by the plaintiff.” Although the plaintiff thus plainly sued as upon full performance, he seeks to sustain the judgment on the theory of excuse for nonperformance which was not pleaded. He admitted that the work was not electro-plated. The issue of excusable- nonperformance was not presented by the pleadings, and was injected only incidentally and accidentally into the trial. If it can be said to have been litigated, the burden was certainly not sustained by the plaintiff. Judgment reversed, and new trial ordered, with costs to appellant to abide the event. All concur.

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Bluebook (online)

143 N.Y.S. 1127, Counsel Stack Legal Research, https://law.counselstack.com/opinion/leutke-v-federal-brass-bronze-co-nyappdiv-1913.