117 N.Y.S. 436 | N.Y. App. Div. | 1909
On the 9th of October, 1906, the defendant was.the owner of a tract of land in Long Island City fronting on the East river and immediately adjacent to land acquired by the city of New York for the so-called Blackwell’s Island bridge, which the plaintiff was constructing. On the date mentioned, plaintiff entered into an agreement in writing, modified by two supplemental agreements, with the defendant by which he leased to it, for a term of two years, a portion of the land owned by him. In consideration of the lease, the plaintiff agreed to build, within three months, a crib dock upon the premises leased and the adjacent premises belonging to the defendant, according to certain plans and specifications which were annexed to the contract. It was to belong to the defendant, who agreed to pay to the plaintiff $3,500 in cash “ upon the completion of said Dock.” The plaintiff, further agreed “ to make the necessary fill inside of said crib from the upland, and to grade the remainder of said land from Vernon avenue to said Dock.” This action was commenced on the 13 th of J une, 1907, the complaint alleging that the plaintiff had duly constructed the dock, arid that the defendant had refused to pay the agreed price, for whicli judgment was demanded. The answer contained certain denials, and alleged, as a counterclaim, that the plaintiff had not constructed the dock according to the contract in specified particulars, and had failed to grade the land from Vernon avenue to the dock. The jury rendered a verdict in favoi
The contract provides in express terms that “ the said Henry M. S.isswein agrees on his part to pay to the Pennsylvania Steel Company in further consideration the sum of Thirty-five Hundred (3,500). Dollars in cash upon the completion of said Dock.” The defendant, therefore, was obligated to pay to the plaintiff the sum of $3,.500 when the dock was completed, irrespective of plaintiff’s covenant to do the grading and filling. This was the construction placed upon the agreement by the. trial court, and from the instruction to the jury to this effect no exception was taken. The dock was constructed for the plaintiff by the Edward B. Jenks Company, and before plaintiff paid such company, it requested the defendant to look it over and see whether or not it was satisfactory. The defendant did so, and thereafter plaintiff wrote him, saying: “We under stand that you and your representative, Mr. Hunt, looked over the dock built by Edward B. Jenks Co. at Eavenswood and that you have agreed to give formal acceptance of this work providing we wrote you, and in order that our contract with the Jenks Company can T>e closed as early as possible, we would appreciate a prompt reply.” On the eleventh of March the defendant answered the letter, saying, among other things: “ 1 am in receipt of your favor of the 8th, and in reply desire to advise you that the writer, as well as Mr. Hunt, looked over the crib and we find same to be satisfactory,” Hunt, referred to in this letter, was a dock builder employed by the defendant to see that the work was properly done. The plaintiff, after the receipt of this letter, paid the Jenks Company for constructing the dock. The defendant, having notified the plaintiff that he found the dock “ to be satisfactory,” and plaintiff having acted on that notification and paid the Jenks Company, could not thereafter be heard to say that the dock was not completed according to contract, and for the reason that when one asserts the truth of a fact to another and that party acts upon the statement, the party asserting the fact cannot thereafter be heard to say that what he said was untrue, when the result of such statement would be to the prejudice or.injury of the other party. (Meeder v. Provident Sav. Life Assur. Society, 171 N. Y. 432; Payne v. Burnham,
If this conclusion be correct, then it disposes of the defendant’s counterclaim so far as it relates to .alleged .defects in the dock. So far as it relates to plaintiff’s alleged failure to do the grading and filling, it seems-to me that no right to recover damages had accrued. to the defendant at the time the action was commenced. The contract contained separate covenants as to the dock and the grading and filling. The dock had to be completed within three months, but no time was mentioned,when the filling and.grading was to be done. It, therefore, follows that the plaintiff might do this work any time before the termination of the. lease, which was nearly two years after the completion of the dock, and until that time the defendant had no cause of action against the plaintiff because it had not completed the grading-and filling. To obviate this difficulty it . is urged that the plaintiff abandoned the contract. It seems that
At the termination of the lease, if the plaintiff had hot performed, then it became liable to the defendant for the damages sustained, and for which he may maintain an action. Other questions- are raised, but it is unnecessary to consider them.
The judgment is, therefore, modified by striking therefrom the clause determining that the defendant has no cause of action, upon his counterclaim, and inserting in place thereof that the counterclaim be dismissed, and the judgment as so modified and the order appealed from are affirmed, with costs to respondent.
Ingraham, Clarke, Houghton and Scott, JJ., concurred.
Judgment modified as stated in opinion, and as modified affirmed, with costs to respondent. Settle order on' notice.