Rode v. Auerbach

Appellate Terms of the Supreme Court of New York

Rode v. Auerbach

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

CourtAppellate Terms of the Supreme Court of New York

DecidedMay 15, 1900

StatusPublished

This text of 31 Misc. 765 (Rode v. Auerbach) is published on Counsel Stack Legal Research, covering Appellate Terms of the Supreme Court of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Rode v. Auerbach, 31 Misc. 765, 64 N.Y.S. 774 (N.Y. Ct. App. 1900).

Pincite

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 [766]*766time 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.

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