163 N.Y. 220, Spence v. Ham

Citation:163 N.Y. 220
Party Name:GEORGE SPENCE, Appellant, v. ALBERT W. HAM, Respondent.
Case Date:June 05, 1900
Court:New York Court of Appeals

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163 N.Y. 220



ALBERT W. HAM, Respondent.

New York Court of Appeal

June 5, 1900

Argued April 19, 1900.

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G. B. Wellington for appellant. It must be presumed that the judgment was reversed because of an error of law, and not upon the facts. (Code Civ. Proc. § 1338; Lewis v. Barton, 106 N.Y. 70; Riendeau v. Bullock, 147 N.Y. 269; Bomeisler v. Forster, 154 N.Y. 229; Parker v. Day, 155 N.Y. 383; Canda v. Totten, 157 N.Y. 281; Petrie v. Trustees Hamilton College, 158 N.Y. 458; Lannon v. Lynch, 160 N.Y. 483.) The decision of the referee is sustained by the evidence. (Clark v. Howard, 150 N.Y. 239.) The rule requiring literal performance of a contract has been relaxed. Substantial performance and good faith are all that are now required. (Crouch v. Gutmann, 134 N.Y. 50; Nolan v. Whitney, 88 N.Y. 648; Phillip v. Gallant, 62 N.Y. 257; Woodward v. Fuller, 80 N.Y. 312; Johnson v. De Peyster, 50 N.Y. 666; Heckmann v. Pinkney, 81 N.Y. 213; Gustaveson v. McGay, 12 Daly, 424; Gibson v. Russell, 37 N.Y. S. R. 402; Oberlies v. Bullinger, 132 N.Y. 598; Miller v Benjamin, 142 N.Y. 616.)

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Charles E. Patterson for respondent. The order appealed from must be affirmed, if the record presents any error upon the part of the referee calling for a reversal of his report. (Cobb v. Hatfield, 46 N.Y. 533.) The plaintiff entirely failed to prove a case under his complaint, and was not entitled to recover at all, under the pleadings in the case. (Code Civ. Pro. § 533; Oakley v. Morton, 11 N.Y. 30; O'Leary v. Bd. of Education, 9 Daly, 161; Smith v. Brown, 17 Barb. 431; Clegg v. N.Y. N. Union, 72 Hun, 395; Bogardus v. N.Y. L. Ins. Co., 101 N.Y. 328; Crane v. Knubel, 2 J. & S. 443; La Chicotte v. Richmond Ry. & El. Co., 15 A.D. 380.) The uncontradicted evidence in the case shows that the plaintiff has not complied with the conditions of the contract alleged in his complaint. A performance of those conditions was not waived by the defendant, and, therefore, the plaintiff was not entitled to recover. (Smith v. Brady, 17 N.Y. 187; Glacius v. Black, 50 N.Y. 145; 67 N.Y. 563; Flannery v. Sahagian, 83 Hun, 109; Anderson v. Petereit, 86 Hun, 600.) The finding of the referee, that the omissions and deviations of the work which are specified by him arose neither from the consent of the owner nor from necessity, was, of itself, sufficient to call upon the Appellate Division to reverse the judgment entered upon the report of the referee. (Crane v. Knubel, 61 N.Y. 645.)


According to the opinion of the Appellate Division it was the intention of that court to reverse the judgment upon the facts as well as the law, but as the order of reversal is silent upon the subject, the statute compels us to presume that the judgment was not reversed upon a question of fact. (Code Civ. Pro. § 1338; Bomeisler v. Forster, 154 N.Y. 229; Koehler v. Hughes, 148 N.Y. 507.)

It is important for counsel in preparing a judgment or order to carry into effect the decision of an Appellate Division, to see that it is so drawn as to properly express what the court actually decided. We have repeatedly called attention to the necessity, when the reversal is on the facts, or when the

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affirmance is unanimous, of so stating in the order or judgment, yet cases are constantly coming before us in which the rights of parties are sacrificed by a disregard of...

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