MacLauchlan v. Behre

237 A.D. 907

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 15, 1933
• Status: Published

Opinion

Judgment reversed on the law and the facts and a new trial granted, with costs to appellants to abide the event, unless within five days after the entry of an order hereon and service of a copy by appellants on respondent, respondent stipulate that the verdict be reduced by the sum of $3,683.21 and interest, being $495.92, the amount of the Standard Oil claim, and $3,187.29, the amount of profit on the uncompleted part of the Rutherford job; and if such stipulation be filed, that the judgment be modified accordingly and as so modified affirmed, without costs. The jury evidently found for the plaintiff the entire amount of profits claimed, and deducted therefrom $5,000 for expenses in litigating in connection with the Rutherford job. The finding of the jury that plaintiff was a participant in the Standard Oil job is against the weight of the evidence. Plaintiff was not entitled to any profit on the amount of the Rutherford job to the extent that it remained incomplete. Lazansky, P.- J., Young, Hagarty and Davis, JJ., concur; Tompkins, J., concurs except as to the Standard Oil Company work, as to which he dissents/