108 N.Y.S. 707 | N.Y. App. Div. | 1908
The defendant appeals from a judgment entered upon a verdict directed in favor of plaintiffs. The action is for the rental of certain dump cars leased to defendant and known as Goodwin cars. The defendant was the contractor for certain improvements proposed to be made by the Hew York Central and Hudson River Railroad Company at and about its terminal in Fourth avenue in the city of Hew York. The work to be done included a vast amount of excavation, it being contemplated that the excavated material should be loaded on cars and taken to. various points.on the line of the railroad where tilling was required. As it would be necessary to run these cars over the permanent tracks' in use for passengers and freight trains it was desirable that cars 'should be used which would carry loads of excavated material without spilling, and that would dump it on one side of, and clear of the track. After considering the comparative advantages of a number of patterns of cars the defendant finally selected the Goodwin car and leased sixty-nine of them at an agreed per diem rental. The present action is for the unpaid rental of thirty-one of these cars, and no question of amount is involved as it was stipulated at the trial how much the plaintiffs would be entitled to recover if so entitled at all. The leases to defendant were originally made by the Goodwin Car Company, the manufacturers of the cars, but subsequently in conformity with a trust agreement .between the plaintiffs and the Goodwin Car Company, and at the request of the latter substituted leases were executed by plaintiffs to defendant: The cars were received by defendant in October, 1903, and in a very few months they proved to '.be unfitted for defendant’s purposes so far as concerned the handling of rock blasted during the course of the excavation. The defendant seems to have complained, as early as February, 1904, that the cars would not do the work expected of them, and from that time on, and especially from May, 1904, correspondence was carried on between defendant and the Goodwin Company respecting the inadequacy of the cars for the work required of them, which culminated in August, 1904,
As to this last agreement there is not the slightest evidence that the Goodwin Company did not- attempt in good faith to perform what it had undertaken to do, or that it violated its agreement not to put cars on the market in competition with the cars leased to defendant.
The defendant failed at every vital point to establish its defense,
The judgment and order should be affirmed, with costs.
Pattebson, P. J., McLaughlin, Laughltn and Clabke, JJ., concurred.
Judgment and order affirmed, with- costs.