Opinion
June 29, 1942.
Present — Lazansky, P.J., Carswell, Johnston, Taylor and Close, JJ.
Action (1) to recover damages for alleged breach by the defendant of a contract in writing for the erection by plaintiff of a factory building for the defendant; and (2) to recover as damages a balance allegedly due from defendant to the plaintiff for work, labor and services in the erection of the same building. The second cause of action was dismissed at the trial. The trial justice submitted to the jury for its answer a single question which, in our opinion, was an immaterial one, which question was answered in the affirmative or favorably to the defendant, by the jury. Thereupon the defendant moved for judgment in its favor upon the jury's verdict, which motion was granted and judgment against the plaintiff upon the merits and dismissing plaintiff's complaint was duly entered. From that judgment and also from an order denying the plaintiff's motion to set aside the verdict of the jury and for a new trial, plaintiff appeals. Judgment and order unanimously affirmed, with costs. No opinion.