Schlesinger v. Ritchie

Appellate Terms of the Supreme Court of New York

Schlesinger v. Ritchie

115 N.Y.S. 116

CourtAppellate Terms of the Supreme Court of New York

DecidedMarch 5, 1909

StatusPublished

Cited by2 cases

This text of 115 N.Y.S. 116 (Schlesinger v. Ritchie) 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

Schlesinger v. Ritchie, 115 N.Y.S. 116 (N.Y. Ct. App. 1909).

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Opinion

PER CURIAM.

The plaintiff brought this action for work, labor, services, and materials under a contract calling for the erection and construction of a balcony, four fitting rooms, a cashier’s desk, and a stock, a packing, and a cutting table, in the Hudson Terminal Building, at the agreed price of $1,050. He did not complete the work, even substantially. He claims to excuse his nonperformance by the defendants’ refusal to pay according to the agreement, which, as he testifies, was that the defendants, copartners, undertook to pay about $200 in cash, and the balance in notes during the progress of the work; that he was to get the cash during the job, but on no specified day; that he received a $300 90-day note, but that upon his demand for cash on a particular day the defendants said they “wouldn’t give him a damn cent until the job was finished.” The refusing answer, even to phraseology, was admitted by the defendants, who, contradicting the plaintiff’s version of the agreement, said the job was to be paid for when done, and that they had given the note as a favor. Having credited the plaintiff’s story, as the judgment shows, the learned trial justice could but find a breach by the defendants, which absolved the plaintiff from further performance and entitled him to abandon the work and' to recover by way of damages such profits as-would result to him from a complete performance, and thereupon award him the difference between the contract price and the estimated cost of the unperformed work. Moore v. Taylor, 42 Hun, 45, 57.

Judgment affirmed, with costs.

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PER CURIAM.

The plaintiff brought this action for work, labor, services, and materials under a contract calling for the erection and construction of a balcony, four fitting rooms, a cashier’s desk, and a stock, a packing, and a cutting table, in the Hudson Terminal Building, at the agreed price of $1,050. He did not complete the work, even substantially. He claims to excuse his nonperformance by the defendants’ refusal to pay according to the agreement, which, as he testifies, was that the defendants, copartners, undertook to pay about $200 in cash, and the balance in notes during the progress of the work; that he was to get the cash during the job, but on no specified day; that he received a $300 90-day note, but that upon his demand for cash on a particular day the defendants said they “wouldn’t give him a damn cent until the job was finished.” The refusing answer, even to phraseology, was admitted by the defendants, who, contradicting the plaintiff’s version of the agreement, said the job was to be paid for when done, and that they had given the note as a favor. Having credited the plaintiff’s story, as the judgment shows, the learned trial justice could but find a breach by the defendants, which absolved the plaintiff from further performance and entitled him to abandon the work and' to recover by way of damages such profits as-would result to him from a complete performance, and thereupon award him the difference between the contract price and the estimated cost of the unperformed work. Moore v. Taylor, 42 Hun, 45, 57.

Judgment affirmed, with costs.

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115 N.Y.S. 116, Counsel Stack Legal Research, https://law.counselstack.com/opinion/schlesinger-v-ritchie-nyappterm-1909.

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