State Storm Window Co., Inc. v. Herder

Full title: STATE STORM WINDOW CO., INC., Appellant, v. ERNEST HERDER et al.…

Court: Appellate Division of the Supreme Court of New York, Fourth Department

Date published: Mar 19, 1952

279 App. Div. 976 (N.Y. App. Div. 1952)

Opinion

March 19, 1952.

Present — Taylor, P.J., McCurn, Kimball, Piper and Wheeler, JJ.

Order affirmed, with $10 costs and disbursements. Memorandum: In our opinion the contract is so indefinite as to be unenforcible.

All concur, except PIPER, J., who dissents in part and votes for reversal of the order insofar as it grants the defendants' motion, in the following memorandum:

There is an implied warranty that the windows, screens, and vents to be constructed under the terms of the contract were to be constructed in good and workmanlike manner and suitable for the purpose for which they were constructed. The answer raises the question of fact as to whether or not they were so constructed. ( Bowser Co. v. McCormack, 230 App. Div. 303, 305; Matter of Casualty Co. [ Bliss Co. Claim], 250 N.Y. 410, 416.) The answer also contains allegations of fraud which are susceptible of oral proof. I do not find the contract indefinite in any material respect. (Appeal from an order denying plaintiff's motion to strike out defendants' answer and for summary judgment, and granting defendants' cross motion to dismiss plaintiff's complaint.)