123 N.Y.S. 755 | N.Y. App. Div. | 1910
The defendant appeals from a judgment in- favor of the plaintiff in the sum of $500 and costs, entered on a verdict of a jury in an action tried in the Municipal Court.
The parties entered into an agreement in writing under which ■the plaintiff was to wreck certain old buildings on Wyckoff street and
The plaintiff claims that after he had started upon the work of removing one of the Wyckoff street buildings, the defendant broke the contract by declaring it at an end. and by refusing to permit the plaintiff to proceed with its performance. He claimed as dam-, ages the amount of $200, payable to him under the written agreement, together with the reasonable value of the building, .material! which the contract gave to him. The defense was that the plaintiff .did not begin the work of removing the lower building on Wyckoff street “ at once,” but delayed several days before it was begun, and hence failed in his agreement to such an extent as to entitle the defendant to declare the entire contract at an end. ■ It was further claimed that the contract between the parties was personal, involving the idea of special skill and facilities on the part of the plaintiff, who, in violation of this condition, did not proceed with the work himself but sold the building materials to other parties, who by the contract of sale became charged with the duty of wrecking the buildings and removing the materials.
On the-question of the time of performance, the defendant gave evidence as to directions to the plaintiff as to the necessity of the immediate beginning of the work of removal on Wyckoff street. The court instructed the jury that the words’ “ at once” were to be construed as meaning within such time as was reasonable under the attending circumstances. This was not error. (Cohen v. Silverman, 4 App. Div. 503, and cases cited.)
As to the contention that the contract was a personal one, the defendant relies upon Devlin v. Mayor (63 N. Y. 8), but that case does not support the contention. There was no assignment of the contract in question by the plaintiff, as his agreement with the parties to whom he sold the building material simply made them as to
In the case at bar, the verdict rendered is on its face based upon the supposed profits of the plaintiff’s sub-contracts.
The judgment of the Municipal Court should be reversed and a new trial ordered, costs to abide the event.
Woodward, Jénks, Burr and High, JJ., concurred.
Judgment and order of the Municipal Court reversed and new trial ordered, costs to abide the event.