Miller v. Northern Improvement Co.

Full title: JOSEPHINE W. MILLER, Respondent, v . THE NORTHERN IMPROVEMENT COMPANY…

Court: Supreme Court, Appellate Term

Date published: Jun 1, 1899

28 Misc. 762 (N.Y. App. Term 1899)

Opinion

June, 1899.

Page Eckley, for appellant.

Phillips Avery, for respondent.

FREEDMAN, P.J.

On October 22, 1898, the plaintiff in this action, doing business under the name of the Phoenix Gas Fixture Company, submitted to the defendant a proposal in writing to furnish and put into several houses, then in course of erection by the defendant, a quantity of gas fixtures and stop-cocks.

The defendant accepted such proposal, agreeing to pay therefor the sum of $143.

This action was brought to recover that amount. The pleadings were verified, and the answer sets up as a defense that the materials furnished and the work performed was not done in accordance with the agreement; that the same was not of the value of $143, and that the defendant did not promise and agree to pay for them. At the close of the testimony given by both parties upon the issues, the defendant made no motion for a dismissal of the complaint, and the case was submitted and a judgment rendered in favor of the plaintiff. The points urged by the appellant as being grounds for a reversal are not sustained by an examination of the record.

The return does not show, as claimed, that a bill of particulars was demanded by the defendant, or that the court ordered one to be furnished. The answer expressly admits that the plaintiff entered into this agreement under the name of the Phoenix Gas Fixture Company, and the written acceptance of the proposal made by the plaintiff was signed by the president of the defendant company, was offered and received in evidence, by which it appears that the defendant agreed to pay the sum of $143 for the work and materials furnished by the plaintiff.

Substantial performance of the conditions of the contract was shown by the plaintiff. Woodward v. Fuller, 80 N.Y. 312; Nolan v. Whitney, 88 id. 648; Gustaveson v. McCoy, 12 Daly, 423.

The questions of fact upon the disputed testimony having been decided in favor of the plaintiff, and no sufficient reason appearing for a reversal of the judgment, it must be affirmed.

MacLEAN and LEVENTRITT, JJ., concur.

Judgment affirmed, with costs to respondent.