Rosenbluth v. Haight

19 Misc. 716

• Court: City of New York Municipal Court
• Decided: February 15, 1897
• Status: Published

Opinion

Scotchman, J.

This is an appeal from a judgment entered on a verdict rendered by a jury, and also from an . order denying the defendant’s motion for a new trial. •

This action was brought to recover the sum of $120, the amount claimed by the plaintiff to be due to him from the defendant under and pursuant to a written contract, entered into- between the parties to this -action, whereby the plaintiff agreed to perform certain plumbing work and furnish material necessary in and about the said work, and for which the defendant agreed to pay the sum of $120.

The sole question, whether the plaintiff performed his part of' the contract, was thoroughly investigated at the trial, and several witnesses were examined in regard thereto by the contending parties to this action.

Deviations from the strict terms of the written contract were made by the plaintiff in the performance of the work, but he testified that that was done ex necessitate rei, viz.: To avoid cutting beams, etc., and further, that the defendant was present every day while the work was progressing and was then informed of the necessary deviation which had to be made and that she assented thereto.

The contention of the respective parties to this action on the conflicting evidence was fairly submitted to the jury by the trial justice and they found for the plaintiff, which finding We consider fully justified.

Judgment affirmed, with costs.

Van Wyck, Oh. J., concurs.

Judgment affirmed, with- costs.