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J.J. Secoles, Inc. v. Dolan

Appellate Division of the Supreme Court of New York, First Department
May 23, 1950
277 AD 761 (N.Y. App. Div. 1950)

Opinion


277 A.D. 761 97 N.Y.S.2d 608 J. J. SECOLES, INC., Respondent, v. MARGARET R. DOLAN et al., Appellants. Supreme Court of New York, First Department. May 23, 1950

         Appeal from an order of the Supreme Court at Special Term, entered February 3, 1950, in New York County, which denied a motion by defendant for summary judgment dismissing the complaint under rule 113 of the Rules of Civil Practice.

          Per Curiam:

          By its letters of November 22 and December 17, 1947, agreed to by defendants, plaintiff modified its contract with defendants so as to cancel any cause of action which it previously may have had for a builder's fee in connection with the structural work described in the complaint. A subsequent letter from plaintiff, however, dated November 8, 1948, refers to extra work subsequently ordered. In plaintiff's president's answering affidavit, he says it was stated orally between the parties after the letters of November 22d and December 17th, 'that on the basis of all the work done, including the extra work * * * and plaintiff's completing whatever other items of the job and incidentals were required, the defendants would recognize their obligation to pay plaintiff a builder's fee in reasonable amount, although such amount would have to be left to them to determine.' We think that a triable issue is presented concerning whether such a subsequent oral agreement was made, and, if so, whether, as thus outlined, it was a mere agreement to agree, and hence unenforcible, or whether it imported an obligation to pay to plaintiff a builder's fee or profit to be measured on a basis of quantum meruit.

          We do not undertake to determine, upon this motion, which defendants, if any, are liable to plaintiff.

          The order denying summary judgment dismissing the complaint should be affirmed, with $20 costs and disbursements to respondent.

          Dore, Van Voorhis and Shientag, JJ., concur; Peck, P. J., and Callahan, J., dissent and vote to reverse and grant the motion.

          Order affirmed, with $20 costs and disbursements to the respondent. [See 277 A.D. 864.]

Summaries of

J.J. Secoles, Inc. v. Dolan

Appellate Division of the Supreme Court of New York, First Department
May 23, 1950
277 AD 761 (N.Y. App. Div. 1950)
Case details for

J.J. Secoles, Inc. v. Dolan

Case Details

Full title:J.J. SECOLES, INC., Respondent, v. MARGARET R. DOLAN et al., Appellants

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

Date published: May 23, 1950

Citations

277 AD 761 (N.Y. App. Div. 1950)
277 App. Div. 761
97 N.Y.S.2d 608