Levy v. David C. Gold & Co.

Appellate Division of the Supreme Court of New York

Levy v. David C. Gold & Co.

119 A.D.2d 554, 500 N.Y.S.2d 556, 1986 N.Y. App. Div. LEXIS 55481

Appellate Division of the Supreme Court of the State of New York·Decided April 7, 1986·Published·Cited by 2 cases

Opinion

— In an action to recover damages for breach of contract, the defendant appeals from a judgment of the Supreme Court, Queens County (Giaccio, J.), dated September 10, 1984, which, upon a jury verdict, is in favor of the plaintiff in the principal amount of $16,000.

Judgment reversed, on the law, and new trial granted, with costs to abide the event.

The trial court completely failed to charge the jury with respect to the law of principal and agent liability, which was the crucial issue in the case, despite a request to do so by the defendant’s attorney. Instead, it merely summarized the contentions of both parties without providing the jury with any rules of law to apply to the facts of the case during its deliberations.

Furthermore, the trial court erred by failing to admit into evidence two canceled checks payable to the plaintiff for work performed in 1980 on the same hotel roof involved in the instant transaction. This evidence was relevant to establish a prior course of conduct between the parties on the issue of whether the plaintiff knew he was dealing with an agent of the defendant. Therefore, the defendant is entitled to a new trial at which the court should permit the introduction of the checks into evidence, if they are offered, and instruct the jury on the appropriate law of principal and agent as requested by counsel for the defendant.

We have considered the defendant’s other contentions and find them to be without merit. Mollen, P. J., Lazer, Kunzeman and Hooper, JJ., concur.

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— In an action to recover damages for breach of contract, the defendant appeals from a judgment of the Supreme Court, Queens County (Giaccio, J.), dated September 10, 1984, which, upon a jury verdict, is in favor of the plaintiff in the principal amount of $16,000.

Judgment reversed, on the law, and new trial granted, with costs to abide the event.

The trial court completely failed to charge the jury with respect to the law of principal and agent liability, which was the crucial issue in the case, despite a request to do so by the defendant’s attorney. Instead, it merely summarized the contentions of both parties without providing the jury with any rules of law to apply to the facts of the case during its deliberations.

Furthermore, the trial court erred by failing to admit into evidence two canceled checks payable to the plaintiff for work performed in 1980 on the same hotel roof involved in the instant transaction. This evidence was relevant to establish a prior course of conduct between the parties on the issue of whether the plaintiff knew he was dealing with an agent of the defendant. Therefore, the defendant is entitled to a new trial at which the court should permit the introduction of the checks into evidence, if they are offered, and instruct the jury on the appropriate law of principal and agent as requested by counsel for the defendant.

We have considered the defendant’s other contentions and find them to be without merit. Mollen, P. J., Lazer, Kunzeman and Hooper, JJ., concur.

Levy v. David C. Gold & Co., 119 A.D.2d 554, 500 N.Y.S.2d 556, 1986 N.Y. App. Div. LEXIS 55481 (N.Y. Ct. App. 1986).

Pincite

119 A.D.2d 554 (Levy v. David C. Gold & Co.) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

Opinion

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