Opinion
October 29, 1965
MEMORANDUM BY THE COURT. In appraising the sharply conflicting evidence, the trial court was warranted in accepting plaintiff's testimony and in thereupon finding that the oral lumpsum contract for the construction of a pond was modified, by implication at least, on plaintiff's insistence, imposed as a condition for his accepting directions for changes in the work. Subsequently, defendant instructed plaintiff to cease work. Plaintiff sued for the fair and reasonable value of the labor and materials furnished and was awarded damages in an amount $800 in excess of the sums paid on account for this and other work. The inexplicable and excessive delay of some 18 months in the decision of this simple issue seems to us shocking; but defendant's contention that he has thereby become entitled to a new trial, although he took no action until rendition of an unfavorable decision, is erroneous under CPLR 4213, from which was omitted the provision for a new trial previously contained in section 442 of the Civil Practice Act. Appellant's additional contentions, so far as they are properly before us, are also without merit. Judgment affirmed, with costs to respondent. Gibson, P.J., Reynolds, Taylor, Aulisi and Hamm, JJ., concur.