61 N.Y.S. 808 | N.Y. App. Div. | 1899
Lead Opinion
I am linable to agree with the conclusion reached. by Mr. .Justice Woodward in this case. Before the contract was made between the plaintiff’s assignor and Mrs. Lefebvre the defendant had notice of it, and knew its terms and conditions. By virtue of that contract he must be presumed to have known that plaintiff’s assignor had obligated herself to pay damages at the rate of twenty-five dollars a day during the period covered by the taking down and erection of the party wall. It was in view of this condition that the agent of plaintiff’s assignor inquired of the defendant the time which would be necessarily occupied in taking down- and putting up the wall; and his answer, in view of .the conditions and the obligations assumed, constituted a contract upon his part to tear down and erect a structure within three weeks. Or, if it be not held to be' a legal binding contract to perform the work within that time, it, at least, clearly imposed upon him the duty of performing the work within a reasonable time, as he was bound to make the sum that plaintiff’s assignor was required to pay as light as possible. 'It is clear that the delay of fifty-one days beyond" the period when the Wall should have been completed, if unexcused, was an unreasonable delay; and such being the fact, the defendant was bound .to justify the delay by proof of conditions excusing it, and the burden is upon him to establish' the sufficiency of the excuse. (Spann v. Erie Boatman’s Transp. Co., 11 Misc. Rep. 680; affd. on appeal, 157 N. Y. 694.)
The proof in the present case tended to establish that the occasion for the delay was the failure of the iron company to deliver -the iron work required for the building; but whether such delay was the fault of the defendant or of the iron company does not appear ; non constat that it might not have been wholly the fault of the defendant. But the plaintiff was not bound to establish this fact. When he had given evidence of his contract and .. the non-performance thereof by the defendant, then the law imposed a burden upon
All concurred, except Woodward, J., who read for affirmance.
Dissenting Opinion
There was clearly no question to be submitted to the jury in this case. The defendant and Mary T. Rix, plaintiff’s assignor, entered into an agreement on the 29th day of August, 1895, in reference to a party wall, in which Mrs. Rix agreed to permit the defendant to take down the then existing wall of her building on West Houston street, New York city, and to erect a new party wall, the right to use the same being conditioned upon Mrs. Rix paying a certain portion of the cost of constructing said wall. Subsequent to this agreement Elisa Lefebvre, as administratrix, etc., who occupied the building belonging to Mrs. Rix as a restaurant and French boarding house, objected to the wall being taken down during her tenancy. To overcome this objection Mrs. Rix entered into an agreement with Mrs. Lefebvre, in which she undertook to compensate the latter for any damages which she might sustain by reason of the removal of the wall, the damages, other than those resulting from negligence, etc., being stipulated at twenty-five dollars per day, with an additional allowance of ten dollars per day for each day in excess of three weeks from the time of commencing the alterations. It was agreed that the alterations should be made in “ an expeditious and workmanlike manner,” and the party of the first part covenanted to indemnify the party of the second, part against “ any damages that she may suffer through any negligence of any party engaged in making the alterations aforesaid, or through failure to comply with the foregoing conditions, or through unreasonable delay in
The only testimony in the case is that of á Mr. Bunnell, who was. the attorney for Mrs. Rix, in the transaction. , While it might be gathered from this testimony that there was some understanding, between-the parties that the work would be completed within a period of three weeks, I find nothing in the contract signed by -the: defendant which imposed such a duty. His contract was merely to-do the work in the manner provided in the agreement between the the parties,- no mention of time being made; and while it was undoubtedly his duty to do the work in a reasonable length of time, there is no evidence in the case that he failed in the discharge; of this duty. On the contrary, it appears that he used due diligence; in prosecuting the work ás soon as he could get the materials, and it is not urged that he has in any degree failed to perform the work in the manner provided in the main contract. He canñotj therefore, be called upon to reimburse the plaintiff for the money which his assignor may have paid to Mrs. Lefebvre under the contract with' Mrs. Rix. The defendant had nothing to; do with that contract except to carry out his agreement to complete the work in a reasonable time and in the manner stipulated in the • agreement between- the parties to the principal contract.
The judgment appealed from should be affirmed, with "costs.
Judgment reversed and new trial granted, costs, to abide the event..
