Opinion
February 4, 1963
In an action to recover for work, labor and services performed and materials furnished by plaintiffs to defendant, the latter appeals from a judgment of the Supreme Court, Queens County, entered February 23, 1962 upon the opinion and decision of the court, in favor of plaintiffs, after a nonjury trial. Judgment reversed on the law and the facts, and a new trial ordered, with costs to defendant to abide the event. Under the terms of the agreement between the parties, the defendant promised to pay plaintiffs for finishing certain doors "to the same stage as the ninety-eight doors previously returned." Plaintiffs, however, have recovered a judgment against defendant for the complete finishing of the doors. Upon the present state of the record we cannot determine what part of plaintiffs' total performance is allocable to defendant's promise. Ughetta, Acting P.J., Kleinfeld, Christ, Brennan and Hopkins, JJ., concur.