119 N.Y.S. 300 | N.Y. App. Div. | 1909
The plaintiff’s assignor entered into a written contract with the defendant for the construction of a three-story brick building in Brooklyn. The contract was substantially completed, as appears from the evidence, and this action is brought to recover the, sum of $2,250, the balance alleged to be due under .such contract. The contract was dated Hay 15, 1906, and recites that the consideration is to be $4,600, but the contract further provides for three payments to be made at various stages of the work, and these three payments aggregate the sum of $5,600, and the principal question submitted to the jury was which of these figures was controlling. The young woman who wrote out the contract testified that the recital of $4,600 was an error on her part; that she knew at the time that the contract price was $5,600, and she is corroborated in this by the aggregate amounts of the several payments, and by the fact that written propositions made by the plaintiff’s assignor to the defendant, prior to the granting of the contract, show in one case a proposition to construct for $5,'TOO, and a second one for $5,600. There can be no doubt that the evidence was sufficient to support the verdict of the jury upon this point, but the defendant urges that this was not properly a question to be disposed of by a jury; that the action was one of an equitable character for the reformation of a contract, and depended upon' facts of an equitable character. We are persuaded, however, that there is no merit in this contention. The contract was there in writing; it had two contract prices fixed, one by the recital of the contract price and the other by the aggregate of the payments agreed to be made, and this presented a fair question for the jury, which one of these figures was'actually agreed upon.
It was likewise claimed on the part of the defendant that the plaintiff’s assignor had agreed to deduct the sum of $450 from the last payment on account of defects in the work as completed, but there was a conflict of evidence upon this point, and the jury has held with the plaintiff. The suggestion of the defendant that there was a defect in the pleadings and in the proof, in that it was not shown that the plaintiff, or his assignor, had procured the certificate 'of the architect which entitled him to payment of the claim, is hardly tenable here, for the simple fact that the contract makes no
The judgment and order appealed from should be affirmed, with costs.
Hirsohberg, P. J., Jenks, Burr and Miller, JJ., concurred.
Judgment and order affirmed, with costs.
