1 N.Y.S. 254 | N.Y. Sup. Ct. | 1888
The plaintiff in this action entered into a contract with the defendant for the regulating, grading, and paving of certain avenues and streets in the city of Yew York, and providing tree spaces, planting shade trees, setting curb-stones, laying cross-walks, and flagging cross-walks therein. By the terms of said contract it was provided that the contractor would be required to have his trees accepted as satisfactory before setting them out, and to replace any tree dead, or showing signs of weakness, until the time of the final payment of any or all moneys retained under any of the provisions or stipulations of the contract. It was also provided that the defendant might retain out of the moneys payable to the contractor, under the agreement, a sum of 25 cents per lineal foot of the \Vork done, and'might expend the same, in the manner provided by the contract, in making such repairs to the work done under this agreement as. the commissioner of public works might deem necessary. This money was to be retained for six months, and’ was to be paid over at the expiration thereof, provided that the work should be in good order, or as soon thereafter as the said work should have been put in good order to the satisfaction of said commissioner. It was also provided that the defendant should pay in cash, on or before 30 days from the time of the completion of the work, and the acceptance of the same by the commissioner, the whole of the moneys accruing to the plaintiff under the agreement, except such sum or sums as might be lawfully retained under any of the provisions therein contained for that purpose. The defendants set up that, within six months from the completion of the work, some of the trees furnished under the contract either died, or showed signs of weakness, and that the contractor had wholly failed to replace them, as required by his contract. Upon the trial of tli# action the defendant offered evidence to substantiate the defense contained in the answer in regard to the condition of the trees, and to show what such condition was prior to the 20th of July, 1885; that date being six months after the acceptance of the work by the properly constituted authorities. This evidence was objected to on the ground that the contract required the contractor to replace the trees only up to the time of the final payment, and that time was January 20,1885. The court sustained the objection, and excluded the evidence.
This seems to have been clearly error. Whatever the payment made within 30 days after the acceptance of the work by commissioner of public works may be called, it certainly is not a final payment under the contract in question, because, accepting the ordinary definition of the word “final,” viz., last, the 25 cents per lineal foot, retained as security for repairs, is evidently the last or final payment. But, in view of the language of the contract under consideration, there is no necessity to resort to any definitions in order to show that the obligation to replace any tree dead, or showing signs of weakness, extended certainly to the six months during which the city might retain the 25 cents per lineal foot of the work done as security for repairs. Money which has not become due under a contract according to its terms cannot be said to be retained by the party who is obligated to pay the same upon the completion of the work; and the use of the word “retained,” in the clause in reference to the guaranty as to the trees, evidently refers to money other than that which becomes payable pursuant to the terms of the contract upon its completion. The 25 cents per lineal foot is spoken of as being retained by the corporation. By the terms of the contract, it has become due to the con
The objection that there was no proof of amount of damage upon the part of the city hardly seems to need much comment. The court had excluded the evidence as to‘the fact of damage, upon the ground that it was immaterial, and, of course, would have made the same ruling when it was sought to prove the amount of such damage. The practice of offering evidence upon evidence, after a ruling has been made which necessarily excludes the whole of such evidence, certainly ought not to be encouraged. One exception to the exclusion of material evidence upon any branch of a case secures the rights of the party ruled against as completely as though there were 20. It would be a mere waste of the time of the court and jury, after the court had excluded the evidence as to the condition of these trees, to have attempted to prove how much the city had been damnified by reason of their damaged condition.
The judgment appealed from must be reversed, and a new trial ordered, with costs to the appellant to abide the event.
Macomber and Bartlett, JJ., concur.