25 Misc. 727 | N.Y. App. Term. | 1899
The pleadings in this action are in writing. The plaintiff alleges that it purchased from the defendant two iron grates of a certain kind,' for which it paid him the sum of $250; that the defendant failed to furnish grates of the kind specified, and that a demand was'thereafter made upon the defendant for the performance of the contract or that the amount which had been so paid by the plaintiff should be refunded, with which demand the defendant had refused to comply. Judgment is accordingly demanded for the said sum of $250.
It appears that the defendant entered into a contract with the plaintiff to perform certain work, labor and services, and to furnish certain materials connected therewith. Among the latter were the grates, or as they are sometimes styled, “ patent lights,” above mentioned. After the work was completed, the defendant Pirkl brought an action against the American Grocery Company, the plaintiff here, to recover the sum of $333.81 for the services which had been so rendered, and for the materials, including said grates, which had been supplied. An answer was interposed, and after a trial had been had, a verdict was rendered in favor of Pirkl for the full amount of his claim, which included the sum of $250 on account of the grates in question, and judgment was entered accordingly, which was subsequently paid by the American Grocery Company.
It appears that when the grates were furnished, the latter refused to receive them, and they were left on the hands of the defendant.. The judgment above referred to was pleaded by the defendant as a bar to this action, and was received in evidence in support of such plea. Notwithstanding this, the trial justice has rendered judgment in favor of the plaintiff, and the question here presented is, whether the judgment so pleaded was a bar to the maintenance of this action. We are of opinion that it was, and that the complaint should have been dismissed.
Gildersleeve and Giegerich, JJ., concur.
Judgment reversed and new trial ordered, with costs to appellant to abide event.