Opinion
January 19, 1976
In an action on a contract, defendant appeals from (1) a judgment of the Supreme Court, Nassau County, entered January 29, 1975, in favor of plaintiff upon the trial court's granting of its motion (a) for a directed verdict and (b) for dismissal of defendant's counter-claim and (2) an order of the same court, dated February 27, 1975, which denied defendant's motion inter alia to set aside the directed verdict. Judgment and order reversed, on the law, and new trial granted, with costs to abide the event. No fact issues were raised on this appeal. The trial court erred when it failed to submit the case to the jury. The primary issue of whether plaintiff performed all of the terms of the contract on its part to be performed, or whether it abandoned its obligations under the contract prior to completion of its work, raises questions of fact requiring a resolution by the jury. Rabin, Acting P.J., Latham, Margett, Christ and Shapiro, JJ., concur.