Opinion
June, 1925.
Order affirmed, with ten dollars costs and disbursements. We are of opinion that the case of Potter v. City of New York ( 59 App. Div. 70) is distinguishable from the case at bar. Plaintiff here was engaged at work upon a large and extensive institution, embracing many separate buildings, and is not carrying out a particular job according to one plan or design. His work involved the constant preparation of new plans and designs, in which the element of definiteness is lacking. If plaintiff's theory be correct, that the work in question is a definite, distinct job, then he would be at liberty to force defendant to accept for an almost indefinite period such plans and designs as he saw fit to prepare and submit. Rich, Jaycox and Manning, JJ., concur; Kelly, P.J., and Young, J., dissent.