Opinion
February 5, 1940.
Present — Lazansky, P.J., Hagarty, Johnston, Adel and Taylor, JJ.
In an action brought originally to recover for a balance due upon a contract for the erection of the foundations for a public school, and for the reasonable value of extra work, the plaintiff, during the pendency of the action, was awarded partial summary judgment for the balance due on the contract. The issues relating to the claim for the reasonable value of the extra work (first cause of action), and those relating to the defendant's retention of $475 for alleged delay by the plaintiff in the performance of the contract (second cause of action) were tried before the court and a jury. The trial justice at the close of the plaintiff's case dismissed the first cause of action; and the jury, by direction of the court, found a verdict in favor of the plaintiff against the defendant for $475 on the second cause of action. From so much of the judgment entered dismissing the first cause of action, and from that part of the judgment which awards costs to the defendant in the sum of $118, and from part of an order resettling said judgment, plaintiff appeals. Judgment, and order resettling judgment, in so far as appealed from, unanimously affirmed, with costs. No opinion.