Opinion
16846/09
10-03-2011
Hudson Meridian Construction Group, LLC, Plaintiffs, v. Kingdom Associates, Inc., Griffin Dewatering- New England, Inc., Magnum Management, LLC, Demar Plumbing Corp. and Inter City Water Mains and Sewers, Inc., Defendants.
Attorney for Plaintiff: Glen Lenihan, Esq., Westermann Sheehy Keenan Samaan & Aydelott, LLP. Attorney for Defendant Griffin De-Watering-New England: William Prinsell, Esq. Law Offices of Edward Garfinkel. Attorney for Defendant Denmar Plumbing Corp.: Austin Murray, Esq. Epstein Harms & McDonald. Attorney for Kingdom Assoc.: Anthony Pagliuca, Esq. Cascone & Kluepfel, LLP. No Appearance: Inter City Water Mains and Sewers, Inc.
Attorney for Plaintiff: Glen Lenihan, Esq., Westermann Sheehy Keenan Samaan & Aydelott, LLP.
Attorney for Defendant Griffin De-Watering-New England: William Prinsell, Esq. Law Offices of Edward Garfinkel.
Attorney for Defendant Denmar Plumbing Corp.: Austin Murray, Esq. Epstein Harms & McDonald.
Attorney for Kingdom Assoc.: Anthony Pagliuca, Esq. Cascone & Kluepfel, LLP.
No Appearance: Inter City Water Mains and Sewers, Inc.
Carolyn E. Demarest, J.
The following papers numbered 1 to 5 read on this motion:
Papers Numbered
Notice of Motion/Order to Show Cause/
Petition/Cross Motion and
Affidavits (Affirmations) Annexed1-3
Opposing Affidavits (Affirmations)4
Reply Affidavits (Affirmations)5
Affidavit (Affirmation)
Other Papers
In this action by plaintiff Hudson Meridian Construction Group, LLC (Hudson) for indemnification, breach of contract, and failure to procure liability insurance, defendant Griffin Dewatering-New England, Inc. (Griffin) moves, pursuant to CPLR 3212, for summary judgment dismissing Hudson's complaint as against it, as well as all cross claims that are asserted against it.
In 2005, Hudson, as general contractor, entered into a construction contract for a project, located at 421-433 East 13th Street and 420 East 14th Street (the project), with the project owner, 13th and 14th Street Realty, LLC (the project owner). Magnum Management, LLC (Magnum) was the construction manager for the project. On November 29, 2005, Hudson entered into a contract with Kingdom Associates, Inc. (Kingdom), a subcontractor, to perform, among other things, dewatering operations at the project. On January 26, 2006, in order for Kingdom to conduct the dewatering operations at the project, wellpoint dewatering equipment was rented from Griffin, which is in the business of performing construction dewatering as well as renting various dewatering equipment to contractors. On February 1, 2006, Demar Plumbing Corp. (Demar), another subcontractor, entered into a subcontract with Hudson to, among other things, furnish and install missing gas and sewer connections at the project. Demar then entered into a subcontract with Inter City Watermains and Sewers, Inc. (Inter City) to perform the excavation work at the project in order to complete the water and sewer service connection.
On March 22, 2006, Antonio Samartzis, the owner of a building located at 418 East 14th Street, adjacent to the project premises (the adjacent premises), claimed that damages resulting from settlement of the front facade, rear facade, and rear patio of the adjacent premises had occurred, caused by the work performed at the project. The damage to the adjacent premises was repaired at a cost of approximately $204,418.46. To avoid disruption of the progress of the project, the project owner paid Antonio Samartzis' claim for the costs of these repairs and withheld $204,418.46 of the project funds due to Hudson. Hudson claims that since its employees were not present, nor did they perform any of the work at the project relating to excavation or dewatering at the premises, one of its subcontractors (the defendants herein) who allegedly performed the work must have caused the settlement to the adjacent premises and should be required to reimburse it the sum of $204,418.46 for the cost of these repairs.
On July 7, 2009, Hudson filed this action against defendants Kingdom, Griffin, Magnum, Demar, and Inter City (collectively, defendants). Hudson's complaint alleges three causes of action. Hudson's first cause of action for indemnification claims that defendants agreed to indemnify and hold it harmless for any and all claims arising out of their performance of the work, and that they have failed to do so. Hudson's second cause of action for breach of contract alleges that defendants were required to defend, indemnify, and hold it harmless for all claims arising from their work at the project, and that, by reason of their failure to indemnify it, they have breached their contractual obligations to it. Hudson's third cause of action for breach of the contractual obligation to procure liability insurance asserts that defendants were required to procure liability insurance for its benefit for all claims arising out of or in connection with the work or service performed by them at the project, that it has demanded that a liability insurer undertake to defend and indemnify it in connection with this action, but, to date, no liability insurer has done so, and that by reason of the failure of any liability insurance company to indemnify it in connection with its claims, defendants have breached their contractual obligations to it. Hudson's complaint seeks a judgment declaring that defendants caused the settlement damages to the adjacent premises, and that defendants must reimburse it the sum of $204,418.46, together with disbursements and legal fees incurred in this action.
With respect to Hudson's claims as against Griffin, Hudson alleges that on or about January 26, 2006, it entered into a purchase order with Griffin for the rental of the wellpoint dewatering equipment necessary for Kingdom to conduct the dewatering operations at the project and for the supervisory services of a representative of Griffin. Hudson's complaint further alleges that pursuant to the terms of its contract with Griffin, Griffin was obligated to obtain and maintain primary insurance coverage protecting it against any and all claims arising out of, or occurring in connection with, Griffin's performance of work at the project or with respect to the operations performed by or on behalf of Griffin.
On October 1, 2009, Griffin interposed an answer to Hudson's complaint. On January 26, 2010, Hudson executed a stipulation discontinuing this action as against Magnum. On August 20, 2010, Demar interposed an answer to Hudson's complaint, in which it asserts a cross claim as against Griffin for contribution and/or indemnification. After Kingdom and Inter City both failed to interpose answers to Hudson's complaint, Hudson moved for a default judgment against them. By order dated February 16, 2011, that motion was denied without prejudice to renewal as against Kingdom because Hudson had sent the CPLR 3215 (g) notice and the notice of motion to an incorrect address, and denied as against Inter City because Hudson failed to demonstrate that it was in privity with Inter City since Inter City was a sub-subcontractor of Demar. On March 30, 2011, Kingdom served an answer to Hudson's complaint, asserting a cross claim as against Griffin for contribution and/or indemnification. Neither Demar, nor Kingdom, has opposed the instant motion.
In addressing Griffin's motion, it is noted that in order to obtain summary judgment, the movant must establish its cause of action or defense sufficiently to warrant a court's directing judgment in its favor as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact (see CPLR 3212[b]; Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). Where the proponent of the motion makes a prima facie showing of its entitlement to summary judgment, the burden shifts to the party opposing the motion to demonstrate by admissible evidence the existence of a factual issue requiring a trial of the action (see Vermette v Kenworth Truck Co., 68 NY2d 714, 717 [1986]). "Only the existence of a bona fide issue raised by evidentiary fact rather than one based on conclusory or irrelevant allegations, will be sufficient to defeat a motion for summary judgment where the movant has made out a prima face basis for the granting of the motion" (Archambault v Martinez, 120 AD2d 632, 632-633 [1986]). The party opposing summary judgment must present admissible evidence in support of its position as " the submission of a hearsay affirmation by counsel alone does not satisfy this requirement'" (GTF Mktg., Inc. v Colonial Aluminum Sales, 66 NY2d 965, 968 [1985], quoting Zuckerman, 49 NY2d at 560; see also Mittendorf v Brooklyn Union Gas Co., 195 AD2d 449, 449 [1993]). Plaintiff has opposed this motion only with counsel's affirmation.
In support of its motion, Griffin asserts that although it is undisputed that the parties entered a purchase order for the rental of wellpoint watering equipment, the claim that Griffin provided supervisory services and a representative for the project is not true. In support of this assertion, Griffin has submitted the sworn affidavit of its project manager, Rafael A. Rivera, in which he attests that Griffin's only role on the project was that it entered into a rental agreement in January 2006 (the rental agreement) with Magnum for the rental of a wellpoint system so that ground water could be extricated from the excavation project.Mr. Rivera, explains that although there was a proposal to Hudson (the proposal), which would have required Griffin to have a technician oversee Magnum's installation of the dewatering equipment, this agreement was never finalized or executed. Rivera asserts that Griffin never had any of its employees perform any work on the project nor did it have a technician supervise the performance of any work on the project, including the installation of any dewatering equipment or supervision of any of the dewatering procedures performed at the project. Rivera further asserts that once Magnum was finished with the dewatering equipment, it was loaded onto a truck by Magnum and returned to Griffin's warehouse, and that, during the time Magnum rented this equipment, Magnum was responsible for its care, custody, and control.
Griffin has annexed a copy of the rental agreement, dated January 25, 2006. Although Griffin asserts that the rental agreement was entered into between it and Magnum, the rental agreement is in the form of a letter proposal from Griffin and Rafael A. Rivera (on behalf of Griffin) addressed to Hudson. Attached to the proposal is a copy of boiler-plate Standard Terms and Conditions in which plaintiff renter is referred to as the "purchaser." It appears that these Terms were included in the event plaintiff decided to avail itself of the technical supervision that was also offered in Griffin's proposal.
The rental agreement states that Griffin was "pleased to present this proposal for rental of dewatering wellpoint equipment for use on the . . . project" and described the wellpoint system to be rented, noting that installation by water jetting techniques with the use of a hole puncher and casing only was contemplated. The rental agreement further provided that when the dewatering equipment was no longer required, the contractor was to remove, load, and return the wellpoint equipment, shipment prepaid, to its warehouse. Under "Design Consult," the rental agreement provided that Griffin included "design consultation, inclusive of one (1) dewatering system plan schematic." Under "Griffin Technician Services," the rental agreement provided that Griffin "c[ould] supply a Griffin Technician to supervise and direct [the renter's] crews in proper operation of the system," and that the technician would be invoiced at $985 per day.
Paragraph 1 of the "Clarifications" section of the rental agreement set forth that the renter would be required to either execute Griffin's Uniform Rental Agreement or could execute the letter proposal as the contract. Paragraph 3 of the "Clarifications" section of the rental agreement further set forth that "[t]his is a rental quotation only," and that "[a]ll installation will be performed by your forces." Paragraph 25 of the Standard Terms and Conditions of the rental agreement provided that the purchaser would be solely responsible to "provide all as-built' drawings, surveys, and/or elevations."
While the document supplied is not executed by plaintiff, it is not disputed that the letter proposal is the agreement of the parties.
With respect to insurance coverage, paragraph 10 of the "Clarifications" section of the rental agreement stated that "[t]he client will provide insurance coverage for Griffin equipment while it is leased to [the] project," that Griffin was required to be named as an additional insured and loss payee as it pertained to the equipment rented, that Griffin would name the client as an additional insured on its insurance certificates, but that Griffin would not be named primary in regards to any insurance liabilities of others. Paragraph E of the General Supplemental Provisions annexed to the rental agreement provided that during the term of the contract, Griffin would provide standard liability and workers' compensation insurance coverage, and would furnish a certificate of insurance upon request. It further provided that "[t]his Certificate of Insurance even if it lists other parties, as named insured shall not expand Griffin's duty to indemnify or insure beyond those duties specifically stated therein," and that "[a]ny other risk or loss or liability is the responsibility of the Purchaser including but not limited to loss or damage to work unless that loss is a direct result of a Griffin act."
The rental agreement did not contain any provision requiring Griffin to indemnify Hudson. In fact, paragraph F of the General Supplemental Provisions of the rental agreement expressly provided that: "Purchaser agrees to indemnify and hold Griffin harmless from and against any and all causes of action, claims and suits . . . concerning alleged damages to property resulting from Griffin's participation in this project, including but not limited to alleged subsidence and/or settling."
Griffin has also annexed a proposal for technical services, which, it asserts, was never executed. The proposal stated that "[a]s per the rental agreement and dewatering plan submitted to Magnum . . . [e]quipment ha[d] been scheduled for delivery on February 14, 2006" and that "[a] Griffin Technician ha[d] been scheduled for a minimum of five (5) days at a cost of $985.00 per day to oversee Magnum[ s] installation of the dewatering equipment." The proposal also listed minimum requirements that were necessary for the receipt of the equipment, and noted that careful attention should be paid to the rental agreement and "Clarifications" set forth therein.
Where a defendant makes a prima facie showing that it could not have caused or created the condition complained of, summary judgment is the appropriate remedy (see Maloney v Consolidated Edison Co. of NY, 290 AD2d 540, 541 [2002]; Verdes v Brooklyn Union Gas Co., 253 AD2d 552, 553 [1998]). Thus, where a defendant submits unrefuted evidence that it did not do work in an area or perform or order the work involved in the accident, summary judgment must be granted (see Iannuzzi v Town of Wallkill, 54 AD3d 812 [2008]; D'Andrea v City of New York, 21 AD3d 926, 927 [2005]; Robinson v City of New York, 18 AD3d 255, 256 [2005]; Cibener v City of New York, 268 AD2d 334, 334 [2000]). Here, Griffin, by the submission of Rafael A. Rivera's sworn affidavit, has made a prima facie showing that the proposal was never executed or finalized, that no technician was provided by it, and that it never had any of its employees perform any work on the project.
In order to maintain a claim for contractual indemnification, there must be a contract requiring indemnification. " [O]n a motion for summary judgment, the construction of an unambiguous contract is a question of law for the court to pass on'" (Maysek & Moran v Warburg & Co., 284 AD2d 203, 204 [2001], quoting Lake Constr. & Dev. Corp. v City of New York, 211 AD2d 514, 515 [1995]). "Words in a contract are to be construed to achieve the apparent purpose of the parties" (Hooper Assoc. v AGS Computers, 74 NY2d 487, 491 [1989]). "This is particularly true with indemnity contracts" (id.). "The promise should not be found unless it can be clearly implied from the language and purpose of the entire agreement and the surrounding facts and circumstances" (Id. at 491-492). By the submission of the rental agreement, which contains no indemnification clause requiring Griffin to contractually indemnify Hudson, Griffin has made a prima facie showing that it is entitled to summary judgment dismissing Hudson's claims seeking contractual indemnification.Hudson, in its opposition papers, fails to allege how there was a breach by Griffin of a contractual obligation under the rental agreement to procure liability insurance. The rental agreement actually provided that the renter was required to provide insurance coverage for Griffin's equipment. While the rental agreement stated that Griffin would name the renter as an additional insured on its insurance certificates, it specified that Griffin would not be named primary in regards to any insurance liabilities of others. Although the rental agreement generally provided that Griffin would provide standard liability insurance, Hudson has not asserted that a certificate of insurance was not provided to it, or that any insurance was required to cover the damages at issue, which did not arise out of work performed by Griffin. Thus, there is no showing that any insurance required under the rental agreement would have afforded coverage for Hudson's claim or that a failure to procure insurance was the proximate cause of any damages to Hudson (see New York City Hous. Auth. v Merchants Mut. Ins. Co., 44 AD3d 540, 542 [2007]). Therefore, Griffin has made a prima facie showing of its entitlement to judgment dismissing Hudson's complaint as a matter of law.
While Hudson's complaint alleges that Hudson has demanded that a liability insurer undertake to "defend" it in connection with this action, this action was brought affirmatively by Hudson as the plaintiff.
Upon Griffin's prima facie showing of its entitlement to summary judgment dismissing Hudson's complaint, the burden shifted to Hudson to submit evidentiary proof, in admissible form, sufficient to raise a genuine triable issue of fact (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]; Zuckerman, 49 NY2d at 560). Hudson has failed to satisfy this burden.
In opposition to Griffin's motion, Hudson's attorney argues that Rafael A. Rivera lacks personal knowledge of the facts and that his affidavit is insufficient to establish a prima facie showing of Griffin's entitlement to judgment. In support of this argument, Hudson's attorney asserts that Rivera has failed to state the basis of his personal knowledge of the facts. Rivera, however, has demonstrated his personal knowledge of the facts by providing all of the details of the rental agreement.
Hudson's attorney also argues that Rivera's affidavit is insufficient because while Rivera stated, in his affidavit, that he was a project manager for Griffin, he did not specifically state that he was the project manager on the project. However, this was not a project managed by Griffin, but was for the mere rental of equipment, and Rivera sets forth his knowledge regarding Griffin's entry into the rental agreement. In fact, Rivera's name was listed under Griffin's name at the bottom of the rental agreement. Thus, Rivera's affidavit was sufficient to support Griffin's prima facie entitlement to summary judgment, requiring Hudson to submit evidentiary facts, in admissible form, to raise a triable issue of fact as to the assertions contained in such affidavit (see Alvarez, 68 NY2d at 324).
Hudson, in opposition to Griffin's motion, however, fails to submit an affidavit from any of its principals or representatives (such as its project manager, Thomas P. Barr) to refute Rivera's assertion in his affidavit that the proposal for on site supervision was never executed or finalized between the parties. The issue of whether Hudson and Griffin executed the proposal would be a fact within Hudson's personal knowledge.
Hudson has submitted only its attorney's affirmation. Hudson's attorney, Glen Lenihan, states that in addition to the equipment that Griffin provided, Griffin also provided a schematic, or design, for the dewatering process. Mr. Lenihan asserts that questions of fact exist with respect to the role that the rental equipment and/or the dewatering schematic provided by Griffin for the project had in causing the damage to the adjacent premises. However, at oral argument, Mr. Lenihan did not know whether drawings had actually been provided as referenced in the rental agreement. Moreover, Hudson fails to specify what role any dewatering system schematic provided by Griffin might have had in causing the damage to the adjacent premises, or how this would support the claims asserted in its complaint. Notably, Hudson's bill of particulars fails to allege any acts or omissions constituting negligence on the part of Griffin. Rather, Hudson's bill of particulars sets forth that its action is solely one for indemnification, breach of contract, and failure to procure insurance.
Hudson's attorney also complains that Griffin did not submit an expert report. Griffin, however, was not required to submit an expert report since it asserts that it was not involved in the project, other than renting its equipment. Significantly, Hudson does not submit any expert report or any other evidence connecting Griffin to the cause of the damage to the adjoining premises.
Hudson's attorney contends that while Griffin denies that any of its personnel were present at the project, there are issues of fact as to whether Griffin's personnel were, in fact, present to operate the equipment, and as to the scope of Griffin's work. Mr. Lenihan speculates that if Griffin did have a technician on the site supervising performance of work and/or use of rental equipment, the technician may have been negligent or derelict in his duties. No competent affidavit from anyone with personal knowledge has been provided to even support the suggestion that Griffin actually performed work at the site and Hudson's bill of particulars fails to allege any acts or omissions constituting negligence on the part of Griffin, stating only that its action is solely one for indemnification, breach of contract, and failure to procure insurance. Nor does Hudson assert what conduct by Griffin constituted a breach of the rental agreement.
Hudson's attorney cites to the undated proposal which states that "[a]s per the rental agreement and dewatering plan submitted to Magnum . . . [e]quipment has been scheduled for delivery on February 14, 2006," as evidence that the proposal must have been drafted no more than two weeks after the January 30, 2006 rental agreement and, since the rental agreement and the proposal for supervision reference the same transaction, they were intended to be read together. From this inference, counsel for Hudson concludes that a triable issue of fact exists as to whether the rental agreement and the proposal were intended to be read together as a single document. Such argument, however, must be rejected in view of the absence of any evidentiary proof that the supervision proposal was ever agreed to or executed by the parties or that any services were provided pursuant thereto (see Donaldson Acoustics Co. v NAB Constr. Corp., 273 AD2d 192, 192-193 [2000]).
Thus, Hudson has not offered any competent evidence which raises a genuine triable issue of fact (see GTF Mktg., Inc., 66 NY2d at 968). Rather, Hudson merely relies solely upon surmise, speculation, and conjecture in an effort to create a feigned issue of fact, insufficient to defeat Griffin's motion for summary judgment (see Jaffe v New York City Tr. Auth., 52 AD3d 784, 785 [2008]; Skouras v New York City Tr. Auth., 48 AD3d 547, 548 [2008]).
Hudson's attorney further argues that because there has been no discovery to date, Griffin's motion is premature. Hudson claims that further discovery is needed in order for it to oppose Griffin's motion. CPLR 3212 (f) provides that if it appears from affidavits submitted in opposition to the motion for summary judgment "that facts essential to justify opposition may exist but cannot be stated, the court may deny the motion or may order a continuance to permit affidavits to be obtained or disclosure to be had and may make such other order as may be just." However, "[m]ere hope and speculation that additional discovery might uncover evidence sufficient to raise a triable issue of fact is not sufficient" to warrant denial of a motion for summary judgment (Sasson v Setina Mfg. Co., Inc., 26 AD3d 487, 488 [2006]). The granting of a summary judgment motion should not be postponed to allow for discovery where the proponent of the additional discovery has failed "to demonstrate that the discovery sought would produce relevant evidence" (Frith v Affordable Homes of Am., 253 AD2d 536, 537 [1998]).
"A grant of summary judgment cannot be avoided by a claimed need for discovery unless some evidentiary basis is offered to suggest that discovery may lead to relevant evidence" (Bailey v New York City Tr. Auth., 270 AD2d 156, 157 [2000]; see also Freiman v JM Motor Holdings NR 125-139, LLC, 82 AD3d 1154, 1156 [2011]; Dempaire v City of New York, 61 AD3d 816, 817 [2009]; Conte v Frelen Assoc., LLC, 51 AD3d 620, 621 [2008]; Lopez v WS Distrib., Inc., 34 AD3d 759, 760 [2006]; Ruttura & Sons Constr. Co. v Petrocelli Constr., 257 AD2d 614, 615 [1999]). "A party's mere hope that further discovery will reveal the existence of triable issues of fact is insufficient to delay determination on the issue of summary judgment" (Lambert v Bracco, 18 AD3d 619, 620 [2005]; see also Wyllie v District Attorney of County of Kings, 2 AD3d 714, 717 [2003]; Weltmann v RWP Group, 232 AD2d 550, 551 [1996]).
Here, there is no showing that discovery would provide a basis for Hudson's claims against Griffin. Rather, Hudson merely speculates that Griffin may have been negligent. Such mere speculation as to the possible negligence of a defendant is patently insufficient to defeat a motion for summary judgment (see Capasso v Capasso, 84 AD3d 997, 998 [2011]; Gillinder v Hemmes, 298 AD2d 493, 494 [2002]; Szczotka v Adler, 291 AD2d 444, 444 [2002]; Parisi v Mitchell, 280 AD2d 589, 590 [2001]).
Furthermore, "[b]efore a party can defeat a motion for summary judgment claiming ignorance of facts due to unconducted discovery, [it] must show that [it] has made reasonable attempts to discover these facts and that the facts sought would give rise to a triable issue" (Gillinder, 298 AD2d at 494; see also Cruz v Otis El. Co., 238 AD2d 540, 540 [1997]). Hudson's attorney asserts that Hudson served a Request for Production and Inspection of Documents and a First Set of Interrogatories prior to Griffin's service of this motion, and that Griffin's failure to respond to these outstanding demands necessitates denial of its motion. This assertion, however, is belied by these document demands (which are annexed to Hudson's opposition papers), both of which are dated March 4, 2011, after the filing of Griffin's motion on February 15, 2011. Thus, Griffin was not required to respond to these demands since CPLR 3214 (b) stayed discovery during the pendency of its motion absent direction by the court to the contrary. Hudson's attorney also notes that no depositions have been held, but does not state that Hudson ever served a notice of deposition seeking to depose a representative of Griffin. Moreover, Hudson has not submitted an affidavit asserting how the facts which it would seek to obtain in such discovery would give rise to a triable issue.
Furthermore, Hudson has not asserted that the facts essential to oppose Griffin's motion are exclusively within the Griffin's knowledge and control (see Loiek v 1133 Fifth Ave. Corp., 46 AD3d 766, 767 [2007]; Arpi v New York City Tr. Auth., 42 AD3d 478, 479 [2007]). Rather, Hudson claims to have entered into the relevant agreement with Griffin, and, therefore, has personal knowledge as to what it agreed. Hudson could have provided a competent affidavit, in opposition Griffin's motion, attesting as to what was agreed (see Monteleone v Jung Pyo Hong, 78 AD3d 988, 989 [2010]). Hudson has failed, however, to submit any affidavit from any of its principals or representatives disputing that Griffin's role was anything other than what has been asserted by Griffin, in Rivera's affidavit. Hudson has thus failed to meet its burden to demonstrate a factual issue requiring trial.
Accordingly, Griffin's motion for summary judgment dismissing Hudson's complaint and all cross claims as against it is granted, and the action is severed as against the remaining defendants.
This constitutes the decision and order of the court.
ENTER,
J. S. C.