Schmidt v. C. P. Builders, Inc.

Appellate Division of the Supreme Court of New York

Schmidt v. C. P. Builders, Inc.

36 A.D.2d 731, 320 N.Y.S.2d 460

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

DecidedMarch 8, 1971

StatusPublished

Cited by3 cases

This text of 36 A.D.2d 731 (Schmidt v. C. P. Builders, Inc.) 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

Schmidt v. C. P. Builders, Inc., 36 A.D.2d 731, 320 N.Y.S.2d 460 (N.Y. Ct. App. 1971).

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Opinion

[732]*732Munder, Acting P. J., Martuscello, Latham and Shapiro, JJ., concur; Benjamin, J., dissents and votes to affirm the judgment, with the following memorandum: In my opinion, Special Term’s determination was equitable and was amply supported by the evidence. It should also be noted that, at the trial, plaintiffs plainly indicated they were not ready, willing and able to perform pursuant to the terms of the contract (which was for the construction of a residence for them by defendant C. P. Builders), since plaintiff Joseph Schmidt testified that he would not trust that defendant to build a house for him. Nor is there any warrant in this record for the reinstatement of Jaro Construction Corp. as a party defendant, since it was not a party to the contract here sued upon and the dismissal of the complaint as to it was for that reason correct.

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[732]*732Munder, Acting P. J., Martuscello, Latham and Shapiro, JJ., concur; Benjamin, J., dissents and votes to affirm the judgment, with the following memorandum: In my opinion, Special Term’s determination was equitable and was amply supported by the evidence. It should also be noted that, at the trial, plaintiffs plainly indicated they were not ready, willing and able to perform pursuant to the terms of the contract (which was for the construction of a residence for them by defendant C. P. Builders), since plaintiff Joseph Schmidt testified that he would not trust that defendant to build a house for him. Nor is there any warrant in this record for the reinstatement of Jaro Construction Corp. as a party defendant, since it was not a party to the contract here sued upon and the dismissal of the complaint as to it was for that reason correct.

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Bluebook (online)

36 A.D.2d 731, 320 N.Y.S.2d 460, Counsel Stack Legal Research, https://law.counselstack.com/opinion/schmidt-v-c-p-builders-inc-nyappdiv-1971.

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