Schultze v. Goodstein

• Decision Date: 17 January 1905
• Citation: 180 N.Y. 248,73 N.E. 21
• Parties: SCHULTZE v. GOODSTEIN et al.
• Court: New York Court of Appeals Court of Appeals

180 N.Y. 248

73 N.E. 21

SCHULTZE

v.GOODSTEIN et al.

Court of Appeals of New York.

Jan. 17, 1905.

Appeal from Supreme Court, Appellate Division, First Department.

Action by Theodore Schultze against Isaac Goodstein and Jacob Deng. From an order of the Appellate Division (81 N. Y. Supp. 946) reversing a judgment for defendants on dismissal of the complaint, Goodstein appeals. Reversed.Louis Marshall, for appellant.

Saul Bernstein, for respondent Schultze.

Joseph Spencer Menline, for respondent Deng.

VANN, J.

This action was brought by the assignee of a contractor to foreclose a mechanic's lien filed by him, and the main issues raised by the answer of the owner were that the contractor failed to perform his contract for the plumbing work and materials in a block of five dwellings, and that he procured the certificate of the architect required thereby through misrepresentation and fraud. A counterclaim was also set forth for the expense of necessary repairs made by the owner. The defendant Deng, as the assignee of a subcontractor who had filed a notice of lien, admitted the allegations of the complaint, and sought a foreclosure of his lien through service of his answer upon the owner as well as upon the plaintiff. The contract price for the plumbing was $11,500, but, before the action was commenced, payments had been made, so that the amount involved was about $1,375.

Upon the trial, evidence was given tending to support the claims of the respective parties, so that questions of fact were presented, in relation to which reasonable minds might differ. The trial judge decided that the complaint should be dismissed, and, in giving his reasons for this decision, which was in the short form, as permitted by the practice then prevailing, he found, in substance, that the contractor failed to perform his contract, in that he furnished earthen sewer pipes, flush pipes of ‘E’ thickness, and waste pipes 1 1/2 inches in diameter, instead of iron sewer pipes, flush pipes of ‘D’ thickness and waste pipes 2 inches in diameter, as required by the contract. He found that these deviations ‘were not caused by inadvertent or unintentional omission of the said contractor,’ and that he was ‘guilty of a willful and intentional departure from his contract,’ in the particulars mentioned, without the authority of the owner or architect. He further found that the notice of claim filed by the contractor under the mechanics' lien law (Laws 1897, p. 514, c. 418) was ‘false and untrue,’ to his knowledge, ‘in the three respects hereinbefore specified.’ No finding was made or conclusion announced in relation to the counterclaim. The judgment entered upon this decision was reversed by the Appellate Division (two of the Justices dissenting), and a new trial was ordered. From the order of reversal, which did not disturb the facts found by the trial judge, the owner appealed to this court.

As the order appealed from does not state that the judgment was reversed upon a question of fact, we are required to presume that the reversal was based upon questions of law only. Code Civ. Proc. § 1338. If the record discloses a reversible error of law, the action of the Appellate Division must be sustained; otherwise it is our duty to reverse their order, and reinstate the judgment of the trial court.

No essential fact was found without evidence to support it, and the facts found sustain the judgment rendered. Van Clief v. Van Vechten, 130 N. Y. 571, 579,29 N. E. 1017;Spence v. Ham, 163 N. Y. 220, 225,57 N. E. 412,51 L. R. A. 238;Aeschlimann v. Presbyterian Hospital, 165 N. Y. 296, 59 N. E. 148,80 Am. St. Rep. 723. The only question remaining, therefore, is whether a material error was committed in receiving or rejecting evidence. National Harrow Co. v. Bement & Sons, 163 N. Y. 505, 57 N. E. 764.

The specifications, which were part of the contract, required the contractor ‘to warrant all the plumbing and gas fitting to remain in perfect working order for one year after the completion thereof, during which time he will have to make all necessary repairs free of charge.’ The owner introduced evidence tending to show that he was compelled at various times during the first year to expend over $300 for temporary repairs to the plumbing, after due notice to the contractor, who neglected to remedy the defects. The following questions were asked of the contractor when called as a witness for the plaintiff, each of which was excluded on the objection of the owner that it was immaterial and incompetent, and an exception was taken: ‘What would be the true and reasonable value to keep the plumbing in such a house in good repair for one year? What would be the proper cost to...