Hirschman v. National Surety Co.

| N.Y. App. Div. | Mar 15, 1929

Judgment reversed on the law and facts, with costs, and complaint dismissed, with costs, and judgment for $1,043.15 allowed to the defendants Philip Schaefer and James Haines, doing business as copartners under the firm name and style of Schaefer Construction Company. Van Kirk, P. J., Hinman, Davis, Whitmyer and Hasbrouck, JJ., concur. The court disapproves findings of fact numbered 16, 21, 22, 23, 24, 27, 30, 31 and 32, and all of the conclusions of law. The court makes the following additional findings of fact: On or about February 18, 1927, plaintiff refused to make payment in accord with the terms of the contract, and, therefore, defendants Schaefer and Haines refused to continue with the work; that the defendants other than the National Surety Company have sustained injury from the breach of the contract herein by the plaintiff in the sum of $456.79 and for the performance of extra work and materials in the sum of $586.36, making in all $1,043.15. The court finds as conclusions of law: First. Plaintiff’s refusal to make payment was a breach of the contract so material as to affect the contract as a whole and defeated the purposes of the parties. The defendants Schaefer and Haines were ready and willing to perform if such payment was made; they were justified in refusing to continue. Second. That the defendants other than the National Surety Company are entitled to the dismissal of the complaint and that by reason of the failure of the plaintiff to carry out the terms of the contract entered into on the 19th day of October, 1926, between the plaintiff and defendants other than the National Surety Company, the defendants Philip Schaefer and James Haines, doing business under the firm name and style of Schaefer Construction Company are entitled to damages sustained by them by reason of the breach, of contract by the plaintiff. Third. That the defendants other than the National Surety Company are entitled to recover judgment against the plaintiff in the sum of $1,043.15, with interest from February 4, 1927. Fourth. That the defendant the National Surety Company is entitled to judgment dismissing the complaint herein as against it.