| N.Y. App. Div. | Jan 7, 1942
Judgment reversed on the law and facts, with costs, and complaint dismissed, with costs. Memorandum: It was reversible error to permit the jury to construe the contract including section 44 of the specifications. (Brainard v. New York Central Railroad Company, 242 N.Y. 125" date_filed="1926-02-24" court="NY" case_name="Brainard v. New York Central Railroad">242 N. Y. 125. 133; Braxton v. Mendelson, 233 id. 122, 124.) While the defendant’s exception was to the whole charge, the plaintiff specifically directed the court’s attention to the errors and we think that this was sufficient to focus the court’s attention on the fact that this particular phase of the charge was included in the defendant’s general exception. This error would call for a reversal and a new trial. However, the plaintiff failed to prove that it had complied with the provisions of section 44 of the specifications relative to attempting to arrange with the Spencer Ross Company a date for the erection of the abutments and the occupation of the site. This, plaintiff had to do, before the defendant’s engineer Robinson was required to establish a decision specifying a date for the erection of the abutments and the occupation of the site. Moreover, the evidence indicates that the defendant’s city engineer and mayor were reasonably diligent in attempting to have the army engineers and the Spencer Ross Company set a date for the erection of the abutments and the occupation of the site so that the plaintiff might begin the erection of the bridge under its contract. We also think that the 120 days allowed under the contract for the completion of the work did not begin to run until the abutments had been erected and the site was available for occupation by the plaintiff. Furthermore, the plaintiff failed to prove, either compliance with section 174 of the specifications or that it could not have used its equipment on the Hudson job. Since the plaintiff failed to prove compliance with the provisions of the contract requiring it to initiate proceedings for the establishing of a date for the erection of the abutments and the occupation of the site and since, under the contract, the army engineers alone could set the date for the erection of the abutments and since the city did all that it reasonably could have done to have the army engineers specify a date, we think that the plaintiff failed to establish its cause of action. Since all available evidence appears to be in the record, a new trial would serve no useful purpose. The judgment should be reversed and the complaint should be dismissed upon the merits. All concur. (The judgment is for plaintiff in an action on a breach of contract.) Present — Crosby, P. J., Cunningham, Taylor, Dowling and McCura, JJ.