107 N.Y.S. 955 | N.Y. App. Div. | 1908
The action is brought to recover damages for a breach of contract. The plaintiff Withers and the decedent Dickson were architects. It is alleged in the complaint that they were duly employed to prepare detailed plans and specifications for the. construction of; the cell work, heating, lighting, ventilating and plumbing for the new city prison at Centre,. Franklin and Leonard streets, in accordance with general. plans which they had duly prepared on their employment by the commissioner of correction,-and which had been approved by the commissioner and by the board of estimate and apportionment. The verdict was directed upon the theory that the architects were entitled to recover five per cent of the cost of construction for preparing the detailed plans and specifications, and supervising the construction, less the disbursements they would have incurred, and that the cost of construction of this work would have been $2-80,000,.and that the expenses that would have been incurred by the architects in the performance of the contract, which were not incurred owing to their discharge, would have been $1,000. The defendant introduced no evidence. The plaintiffs recovered a former verdict upon the saíne theory upon evidence that does not materially differ from that in the -record now before us, and the judgment was reversed and a new trial granted by. this court. (Withers v. City of New York, 92 App. Div. 147.) It appeared in. the former record by uncontroverted evidence, as in this, that the general plans prepared by the architects were duly approved by the commissioner of correction and by the board of estimate and apportionment. It then appeared and now appears that neither the commissioner of correction nor the board of estimate ever approved the detailed' plans and specifications prepared by these architects for the cell work, heating, lighting, ventilating and plumbing for the prison, and that down to the time when the services of these
It follows, therefore, that the. judgment and order should be reversed and a new trial granted, with costs to appellant to abide the event.
Patterson, P. J., Ingraham, Clarke and Scott, JJ., concurred.
Judgment and order reversed, new trial ordered, costs to appellant to abide event.