Gurski v. Doscher

98 N.Y.S. 588 | N.Y. App. Div. | 1906

Gaynor, J. :

Ho time of payment having been fixed by the original contract the law fixed the time, viz., when the contract was Completed; The defendant’s counsel objected to the admission of the evidence of the change of the contract by providing for payments at stages of the work on the ground thai it was “ incompetent, immaterial and irrelevant, and as tending to vary a contract already executed between the parties.” This general objection was of Course hot good ; it did not raise the point that there was no consideration for the new agreement ás is now urged: The difficulty with that is that there was no such objection taken on the trial. Thp court left it to thé jury to say whether the new contract was made, the defendant. having denied- it on the witness stand. This was excepted' to, but no question of invalidity for lack of consideration was raised. The exception was in terms to the' charge (paraphrased by .counsel). “ that a binding contract could be subsequently modified between the parties.” The request to charge has the same omission; indeed, it only asked the court to charge that “ neither party ” could change a contract. The brief for the appellant states that the foregoing is the only question the appellant submits.

The judgment and order should be. affirmed.

Hirschberg, P. J., Woodward, Jenks and Rich, JJ., concurred.

Judgment and order of the County Court of Kings county affirmed, with costs.