177 A.D. 725 | N.Y. App. Div. | 1917
The plaintiffs contracted with the city of New York through the aqueduct commissioners to construct the Cross River Reservoir in Westchester county. They proceeded with their work,
The plaintiffs are met at the threshold of their argument with the defendant’s contention that plaintiffs’ receipt of the final payment of $157,514.67 operated to release all other claims under article XXIX of the contract. That article reads as follows: “The acceptance by the contractor of the last payment aforesaid shall operate as and shall be a release to the City, the Commissioners and each of them and their agents, from all claim and liability to the contractor for anything done or furnished for or relating to the work, or for any act or neglect of the City or of any person relating to or affecting the work, except the claim against the City for the remainder, if any there be, of the amounts kept or retained as provided in Article XXIII.” It is not claimed that the causes of action in question are within the exception. At the time that this final payment was accepted by the plaintiffs the plaintiffs executed a general release to the city. In that general release, however, was a provision which assumed to reserve to the plaintiffs the right to make claim against the city for the matters included in this action. The contention of the plaintiffs is that by reason of the fact that this reservation was made in this general release which was filed at the time of the acceptance of the last payment, such acceptance cannot be deemed to be in full or cannot operate as a release of the claims here sought to be enforced. In support of this contention Gearty v. Mayor, etc. (171 N. Y. 61, 66) is cited. In that case a general release was executed which was required by the comptroller in order to .obtain
If, however, this question should be passed, we are still unable to find sufficient proof to establish the plaintiffs’ claims. We agree with the plaintiffs that the effect of the motions for a directed verdict was to submit to the court only those claims that had not been dismissed during the trial of the action prior to the time when these motions were heard. Without specifying our conclusions in detail upon the specific claims made, it may be stated generally that, allowing to the decision of the trial judge the legal force of his determination on the facts as to the causes of action submitted to him, and allowing to the
The exceptions should be overruled, with costs, and judgment ordered to be entered on verdict.
Clarke, P. J., Scott, Page and Davis, JJ., concurred.
Exceptions overruled and judgment ordered on verdict. Order to be settled on notice.