44 N.Y.S. 143 | N.Y. App. Div. | 1897
The first cause of action set forth in the complaint is founded upon an alleged breach by the defendant of a contract between the parties, whereby it was agreed that the plaintiff should have the privilege of assorting the refuse dumped from the carts of the street cleaning department at the dumping boards of the city, for the period of one year from June 12, 1892, for which the plaintiff undertook to furnish all the laborers necessary to trim the scows and boats of that department, and pay to the city $1,786 weekly in advance. The plaintiff entered upon the performance of the contract. The alleged breach is that, on or about the 1st day of November, 1892, the defendant refused to allow the plaintiff to proceed further in its performance. The contract contained a provision to the effect that if at any time before the expiration of the contract period the commissioner of street cleaning should deem it for the interest of the city so to do for any other reason than the failure of the plaintiff to comply with the terms of the agreement, he should have the power to terminate it upon giving at least ten days’ notice in writing to him of such intention, and that on the date and time specified in the notice the plaintiff would discontinue the work and the agreement absolutely terminate.
In September, 1892, the health department, in apprehension of cholera, as a precautionary measure required that assorting the
The plaintiff obtained by the judgment all the relief he sought by the second cause of action alleged in the complaint. There was no support in the evidence for any recovery upon the third cause of action, and as to that the complaint was properly dismissed. The dumping board at the foot of Forty-sixth street, East river, was in no condition for use when the contract was made. It is said that it had been destroyed by fire. There was no provision in the contract for its reconstruction or repair. Ror was there any ambiguity in the terms of the contract, or anything which required evidence to explain, or to complete or perfect any of its provisions.
The import of the contract was that the plaintiff should have the privilege of assorting all the refuse which was dumped from the
In the view taken of the case there was no error in any ruling at the trial, other than in the exclusion of evidence relating to the first cause of action alleged in the complaint, and for that the judgment appealed from should be reversed and a new trial granted, costs to abide the event.
All concurred.
Judgment appealed from reversed and new trial granted, costs to abide the event.