Rode v. Auerbach

31 Misc. 765, 64 N.Y.S. 774

Opinion

Per Curiam.

From the evidence it appears that July 20, 1897, was the time fixed for the completion of the work, and that time was of the essence of the contract. As no waiver of this time provision was alleged none could be shown. Elting v. Dayton, 17 N. Y. Supp. 849.

If, however, it be assumed that a waiver of strict performance as to time could be shown, evidence of performance within a reasonable time would be necessary and there is no evidence as to the time of the completion of the work.

The only witness, Edward Rode, who testified as to completion, did not state the time. The record discloses no merit in the plaintiffs’ claim.

The judgment should be reversed, with costs to appellants to abide the event.

Present: Tbuax, P. J., Scott and Dugbo, JJ.

Judgment reversed, with costs to appellants to abide event.