122 N.Y.S. 878 | N.Y. App. Div. | 1910
The defendant Byan had a contract for the alteration of and the building of an addition to Public School No. 32 in the city of New York. He made a sub-contract to furnish, erect and. finish all the structural and ornamental iron work required under the first-mentioned contract. The plaintiff in turn made a sub-contract, with one Thacke to do the setting of the iron. Byan’s contract with the city-contained a time limit, but no time limit was included, in terms, in the contract between the plaintiff and Byan. The .work which Byan reserved to- .perform himself and that which plaintiff contracted to do were so dependent upon each other that delay by one. necessarily delayed"the other. The contract between plaintiff and Byan was for the lump sum of $3,525, and, as no provision was made for payments, as the work progressed, none was due to plaintiff until the completion of the contract.. There seems to be no doubt that there were delays on the part of both the plaintiff and Byan, and that by such delays each hampered the work of the other. It is not, however, necessary to consider who offended most in this particular until the latter part of August, 1906, when
The judgment should be reversed and a new trial granted, with costs to the appellants to abide the event.
Ingraham, P. J., McLaughlin, Clarke and Dowling, JJ., concurred. ,
Judgment reversed, new trial ordered, costs to appellants to abide event.