Sulinski v. Leahy

84 N.Y.S. 928

• Court: Appellate Terms of the Supreme Court of New York
• Decided: November 12, 1903
• Status: Published

Opinions

GILDERSLEEVE, J.

This action was brought to recover the balance claimed by the plaintiff to be due him upon a contract, and arose out of the following facts: The defendant had a written contract with the city of New York for the doing of the work and funnishing the materials in the erection of an engine house. The house was to be built according to certain plans and specifications. On July 14, 1902, the plaintiff made a written proposal to the defendant, of which the following is a copy;

“New York, July 14th, 1902.

“Thomas B. Leahy Esq., 9 East 42 Street—Dear Sir: We propose to furnish labor and material for laying the contract asphalt and iron clad pavement, also expanded metal for floor weighing 85 lbs per 100 square feet at Engine Company No. 9, located at 55 E. B’way; according to the plans and specifications made by Supt. of Buildings of Fire Dept. and under his direction;

“Work guaranteed for five years after date of completion; for the sum of (8965.00) Nine Hundred and Sixty-five Dollars.

“Yours truly, Eagle Artificial Stone Co.,

“Per J. Sulinski.”

The offer contained in the letter was accepted, and the plaintiff performed the work and furnished the materials called for therein.

The contract made between the city and the defendant provided that what are called “wood centers” should be used. These “wood centers” are wooden erections or false work put in place to support a concrete floor while it is setting and hardening, and are subsequently removed. Neither the plaintiff’s proposal nor the defendant’s acceptance thereof in any way refer to the “wood centers.” After the plaintiff’s proposal had been accepted, and prior to his beginning of the work thereunder, the defendant claimed that the plaintiff had agreed to furnish the wood centers, and the plaintiff denied such claim. Thereupon the defendant caused the wood centers to be made, and in this action counterclaimed for their value, viz., $57.46. This counterclaim was not allowed. The written contract being silent upon that subject, both sides had recourse to oral testimony at the trial upon the question as to whether or not the plaintiff had agreed to furnish the wood centers, and upon this question of fact the trial judge found in favor of the plaintiff.

The claim of the appellant that because his contract with the city in its plans and specifications called for “wood centers,” and the plaintiff had contracted to do certain labor and furnish certain material “according to the plans and specifications made,” etc., the plaintiff was thereby required to furnish “wood centers,” is untenable. The plaintiff’s proposal was only to “furnish labor and material for laying concrete asphalt and ironclad pavement and expanded metal floor,” and these specified articles were to be “according to plans and specifications,” and there is no claim made that, so far as these articles are concerned, he failed to perform his contract, and the plaintiff could not be required to “put in wood centers in the floor construction as required by the plans and specifications,” etc., unless he had contracted with the defendant so to do. As before stated) upon this disputed question of fact the version of the-plaintiff was believed by the trial court. The trial court also, evidently, found that the delay of the plaintiff in commencing the work was due to the defendant’s failure to insert the wood centers, and that his counterclaim for damages for such delay was unfounded.

.There seems no good reason for disturbing the judgment herein. Judgment affirmed, with costs.

FREEDMAN, P. J., concurs.