Moreland v. Delhaye

111 N.Y.S. 641

Opinion

MacLEAN, J.

Failure for a period of four days by the defendant to have men at work doing what for a sum certain he had agreed to do for the plaintiff, though not within a stipulated time, as that had apparently been waived, even with notice to proceed, was not purely a question of law herein, for “if the facts are disputed, or, if undisputed, they are of such a nature that reasonable men might differ in regard to the inferences proper to be drawn from them,” as herein, “then those inferences are to be drawn by a jury under proper instructions from the court.” Mead v. Parker, 111 N. Y. 259, 262, 18 N. E. 727, 728. The submission of the reasonableness of delay was, therefore, proper. As failure or temporary delay was found by the jury not unreasonable, so it was not necessarily a refusal to proceed, and the right of the defendant to recover upon his counterclaim to an amount justified by the evidence adduced followed as of course. The judgment should be affirmed.

Judgment affirmed, with costs.

GIEDERSEEEVE, P. J., concurs. SEABURY, J., concurs in result.