195 A.D. 12 | N.Y. App. Div. | 1921
The plaintiff, as his complaint was formulated, assumed the burden of showing that the engineer’s certificate, in accordance with which it was alleged that the city had deducted the penalty for delay, proceeded upon a misconstruction of the terms of the contract and was in certain respects unreasonable and arbitrary. The plaintiff introduced much evidence tending to show that his assignor was entitled to be credited with certain delays, and in two particulars, without considering them all, he
I, therefore, recommend that the judgment and order be reversed and a new trial granted, with costs to abide the event.
Jenks, P. J., Rich, Kelly and Jaycox, JJ., concur.
Judgment and order reversed and new trial granted, with costs to abide the event. Settle order before Mr. Justice Blackmar.