126 N.Y.S. 678 | N.Y. App. Div. | 1910
The - plaintiff declared upon indebitatus assumpsit. On the opening his counsel said that the action was to recover a balance on a building contract, which contained provisions that the work was to be completed on the 1st of January,. 1907, and that if the plaintiff did not finish at that time he was to pay $50 for each day “ he ran over the contract.” He further said that the plaintiff was delayed so that the time was exceeded, that the building was finally completed, that the architect so certified; that,.under the terms of the contract, the plaintiff was entitled to $3,800 balance due; that Mr. Farrell demurred to the demand and wanted to pay less, and “ claims to deduct from the $3,800 not only, the full amount, but ' claims a counterclaim of $2,200. He wants to recover * * * fifty dollars a day for 120 days over time. I take it that will be the real question in the case, whether he is entitled to that or not.” Thereupon, “ on the opening of counsel,” the defendant moved to
Hirschberg, P. J., Woodward and Rich, JJ., concurred; Thomas, J., dissented. ■
Judgment reversed and new trial granted, costs to abide the event. '