Ramstedt v. Brooker

Appellate Division of the Supreme Court of New York

Ramstedt v. Brooker

113 A.D. 45, 98 N.Y.S. 1044, 1906 N.Y. App. Div. LEXIS 1366

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

DecidedMay 9, 1906

StatusPublished

This text of 113 A.D. 45 (Ramstedt v. Brooker) 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

Ramstedt v. Brooker, 113 A.D. 45, 98 N.Y.S. 1044, 1906 N.Y. App. Div. LEXIS 1366 (N.Y. Ct. App. 1906).

Pincite

Opinion

Gaynor, J.:

The complaint is for the balance due on a building contract Performance is alleged, and that was the issue tried. I do not see how the justice could direct a verdict for the defendants. A careful reading of the evidence shows that at best for the defendants the question whether the plaintiff had performed was one of fact for the jury. The law is that if the contract was substantially performed that was performance. The jury had to be so charged, and it was for them to say whether there had been a substantial performance. The omission of some small things is not enough to defeat a recovery on a complaint for performance. Such omissions in the case of building contracts may well be inadvertent or in good faith. . Hero the justice seems to have directed the verdict because some clothes closets did not have three coats of plaster.. They were not to be classified with' the walls of the house. The omission at [46]*46all events canñot be said as matter of law to have been, intentional and substantial; that 'was for the jury.

Jenks and Hooker, JJ., concurred ; Hirschberg, P. J., and Woodward, J., dissented.

Judgment of the Municipal "Court reversed and new trial ordered, costs- to abide the event. ' '

Free access — add to your briefcase to read the full text and ask questions with AI

Gaynor, J.:

The complaint is for the balance due on a building contract Performance is alleged, and that was the issue tried. I do not see how the justice could direct a verdict for the defendants. A careful reading of the evidence shows that at best for the defendants the question whether the plaintiff had performed was one of fact for the jury. The law is that if the contract was substantially performed that was performance. The jury had to be so charged, and it was for them to say whether there had been a substantial performance. The omission of some small things is not enough to defeat a recovery on a complaint for performance. Such omissions in the case of building contracts may well be inadvertent or in good faith. . Hero the justice seems to have directed the verdict because some clothes closets did not have three coats of plaster.. They were not to be classified with' the walls of the house. The omission at [46]*46all events canñot be said as matter of law to have been, intentional and substantial; that 'was for the jury.

Jenks and Hooker, JJ., concurred ; Hirschberg, P. J., and Woodward, J., dissented.

Judgment of the Municipal "Court reversed and new trial ordered, costs- to abide the event. ' '

Cite This Page — Counsel Stack

Bluebook (online)

113 A.D. 45, 98 N.Y.S. 1044, 1906 N.Y. App. Div. LEXIS 1366, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ramstedt-v-brooker-nyappdiv-1906.