Summary
In Fredburn, which was decided after Cauldwell-Wingate (269 N.Y. 539, supra) but before Gerace Castagna (307 N.Y. 707, supra) and Nicholas (293 N.Y. 704, supra), plaintiff contractor performed extra work under a contract similar to the present one, and at the very time it accepted final payment it executed a release reserving a claim for the extras.
Summary of this case from Brandt Corp. v. City of New YorkOpinion
Argued April 10, 1939
Decided May 23, 1939
Appeal from the Supreme Court, Appellate Division, First Department.
Edwin Hort and Millard H. Ellison for appellant.
William C. Chanler, Corporation Counsel ( Alvin McKinley Sylvester and Paxton Blair of counsel), for respondent.
We are of the opinion that upon the motion made by defendant for summary judgment under rule 113 of the Rules of Civil Practice, a substantial question of fact was presented which entitled the plaintiff to a trial of the issue as to whether the so-called last payment voucher was intended and understood to be a last payment voucher and whether plaintiff was barred by accepting the so-called last payment from recovering any further payments from the defendant.
The judgments should be reversed and the motion denied, with costs to the appellant to abide the event.
LEHMAN, HUBBS, LOUGHRAN, FINCH and RIPPEY, JJ., concur; O'BRIEN, J., dissents; CRANE, Ch. J., taking no part.
Judgments reversed, etc.