| N.Y. App. Div. | Apr 8, 1965
Lead Opinion
The defendants were awarded a judgment on counterclaims in the Municipal Court (now City Court) of the City of Syracuse. Upon appeal to the Onondaga County Court the judgment was affirmed. This appeal is from the affirmance of that judgment.
The plaintiff instituted action to recover moneys claimed to be due under a contract for the installation of a swimming pool on the defendants’ property. The counterclaims upon which the defendants succeeded were for rescission seeking the return of moneys paid on the contract and for money damages under section 150 of the Personal Property Law. If it were not for errors in the submission of this case to the jury we would have no difficulty in affirming. In our view the Personal Property Law does not apply to this case. For this law to
, In view of this determination the defendants may well desire to amend their answer. If such an application is made the amendment should be allowed.
, The order of Onondaga County Court and judgment of Municipal Court of Syracuse should be reversed and a new trial granted.
Dissenting Opinion
(dissenting). Justice requires the affirmance of this judgment, despite the fact that there might have been (and we do not agree that there were) errors in the submission of the case to the jury. The verdict of the jury was eminently fair and proper, and the majority so agree. As a matter of fact, if any other verdict were returned it would clearly be against the weight of the evidence. <
Factually the case of Carlson, Holmes & Bromstad v. Stewart & Co., (147 Misc. 607" court="N.Y. Sup. Ct." date_filed="1932-10-21" href="https://app.midpage.ai/document/carlson-holmes--bromstad-inc-v-m-i-stewart--co-5422648?utm_source=webapp" opinion_id="5422648">147 Misc. 607, affd. 246 A.D. 522" court="N.Y. App. Div." date_filed="1935-10-15" href="https://app.midpage.ai/document/gilbert-v-beall-5342013?utm_source=webapp" opinion_id="5342013">246 App. Div. 522), cited by the majority, has no application. There the plaintiff contracted to construct and install a beauty parlor according to plans and specifications based upon conditions in defendant’s store. Plain-jiff agreed to provide all the work, labor, services and materials necessary for the building of the fixtures and their installations. While the court held that this was not a contract of sale, nevertheless it proceeded to apply certain sections of the Personal Property Law to the Statute of Frauds issue raised and as a basis for damages. Similarly, Perlmutter v. Beth
The present situation does not in any degree represent an agreement similar to a construction contract. Here we have primarily a sale of a swimming pool with an incidental agreement to install. The sale was the important part and, as we have .said, installation was incidental. That being so, there was no error in the charge insofar as it submitted certain sections of the Personal Property Law to be applied in the determination of damages.
This cause of action accrued in June of 1960. A jury verdict was rendered on the 23rd day of January, 1961. There was an appeal to the County Court of Onondaga County, where the judgment was affirmed. The case finally found its way into our court about five years after the cause of action accrued, and about four years after the verdict. The matter should not be protracted further.
Bastow and Del Vecchio, JJ., concur with Noonan, J.; Williams, P. J., dissents and votes to affirm in opinion in which Goldman, J., concurs.
Order of Onondaga County Court and judgment of Municipal Court (now City Court) of Syracuse reversed and a new trial granted in the City Court of Syracuse, with costs in all courts to abide the event.