58 A.D.2d 1016 | N.Y. App. Div. | 1977
Order unanimously affirmed, with costs. Memorandum: The only question presented is whether plaintiff-respondent, a sewer contractor, may recover interest on partial summary judgment awarded it at Special Term. Appellant Town of Lewiston claims that its check in the amount of $22,269,38 constituted valid tender sufficient to prevent the accrual of interest. We disagree. Knab Bros. Inc., the contractor, had a contract to install culverts and storm sewers in six sections of the appellant town. One section was deleted by mutual consent. Four sections were properly completed and partial summary judgment was granted for the amount claimed for this work. The final section, on which plaintiff-respondent believed it had a contract to perform work, was performed instead by employees of the County of Niagara. Upon presentation by plaintiff of its claim for $22,769.38 for the four completed sections of work under the contract, an official of appellant said that if $500 could be taken off the statement it would be immediately presented to the town board. A new voucher was thereafter prepared by appellant town in the amount of $22,269.38 and on October 9, 1975 a check in that amount labeled "final payment for contract” was given plaintiff. Knab Bros. Inc. refused to cash the check because of the condition on its face, commenced suit on the contract and moved for summary