Opinion
October, 1912.
Leonard McGee, for appellant Jansen.
Charles P. Hallock, for appellant Schneider.
Plaintiff on June fourth made an agreement with defendant for instruction in aviation for which defendant was to be paid $250 for teaching plaintiff to fly. Plaintiff paid this $150 in advance, the remaining $100 to be payable after the plaintiff had received the lessons and was able to fly.
Plaintiff was first sent to the shop to see the construction of the machine and learn how to assemble the parts, where he worked from June seventh to June fifteenth. On June fifteenth plaintiff was told there was no work for him there, and plaintiff went home to wait for lessons in the field. After that plaintiff went to defendant's place at Belmont Park and saw defendant's mechanic, but got no instruction. Plaintiff reported daily until June thirtieth, without receiving any lesson. The machine was then taken apart to be moved to Nassau Boulevard where plaintiff went early in July. But no opportunity was given him to use the machine which was not even put together. After making demands, the Legal Aid Society was appealed to and wrote the defendant on plaintiff's behalf. On August fourth the defendant replied:
"If Mr. Jansen will call at my school at Nassau Boulevard, he will receive his lessons at once."
Plaintiff, however, did call, but received only one practical lesson in the biplane on August sixteenth, when in about a minute a screw dropped out, so that the machine had to be stopped.
Other demands were repeated and disregarded until, on August twenty-third, plaintiff notified the defendant that, as he was not getting instruction, he would not come again, followed by this suit for the return of his payment of $150.
The trial court gave the plaintiff judgment for seventy-five dollars and costs, from which both sides have appealed.
The evidence indicates such indifference and neglect by defendant (especially after his written promise on August fourth that plaintiff should receive his lessons "at once"), that the court was justified in finding that defendant had broken his contract. The work in the shop was a preliminary, but the defendant's contract was entire, and cannot be separated and apportioned. Starr v. Liftchild, 40 Barb. 541; Kabus v. Seftner, 34 Misc. 538.
The judgment is reversed and a new trial granted, costs to abide the event.
Present: CRANE, PUTNAM and ASPINALL, JJ.
Judgment reversed.