153 N.Y.S. 37 | N.Y. App. Div. | 1915
The plaintiff was a subcontractor under the principal contractor for painting the elevated steel structure of portions of the subway railroad in Queens county, and one Richman was a subcontractor for the work under the plaintiff. A clause of the contract provided that if the contractor should abandon the work, or should refuse or neglect to prosecute it with a force sufficient in the opinion of the principal to insure its completion within a certain time, or if the work should not be done according to contract, the principal should by a three days’ written notice have the right to notify the contractor to discontinue, and thereupon after the expiration of such three days, the contractor should discontinue and the principal might enter upon and take possession of the work and the plant used in connection therewith and itself complete the work or contract for its completion at the expense of the contractor.
The action is on a bond given by Richman for the faithful performance of his contract, and the issue was whether Rich-man had abandoned the job or whether plaintiff had unjustifiably prevented him from continuing it. The plaintiff moved to set the verdict aside upon all the grounds mentioned in section 999 of the Code of Civil Procedure, including the ground that it was against the weight of evidence, which motion the court took under consideration and subsequently granted the motion to set the verdict aside, not upon any of the grounds
The order must, therefore, be reversed, with costs, and the verdict reinstated.
Ingraham, P. J., McLaughlin, Clarke and Scott, JJ., concurred.
Order reversed, with costs, and verdict reinstated.