180 N.Y. 248, Schultze v. Goodstein

Citation:180 N.Y. 248
Party Name:THEODORE SCHULTZE, Respondent, v. ISAAC GOODSTEIN, Appellant, and JACOB DENG, Respondent.
Case Date:January 17, 1905
Court:New York Court of Appeals
 
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Page 248

180 N.Y. 248

THEODORE SCHULTZE, Respondent,

v.

ISAAC GOODSTEIN, Appellant, and JACOB DENG, Respondent.

New York Court of Appeal

January 17, 1905

Argued December 15, 1904.

Page 249

COUNSEL

Louis Marshall for appellant. It does not appear in the order of the Appellate Division reversing the judgment of the trial court and granting a new trial that such reversal was upon the facts, and, therefore, it must be presumed that the reversal was for some error of law only. (Code Civ. Pro. § 1338; Whitman v. Foley, 125 N.Y. 651; Hannigan v. Allen, 127 N.Y. 639; Nat. W. P. Co. v. Sire, 163 N.Y. 127; Weyer v. Bach, 79 N.Y. 409.) The question whether a builder's contract has been substantially and in good faith performed is one of fact. ( Glacius v. Black, 50 N.Y. 145; Philip v. Gallant, 62 N.Y. 256; Nolan v. Whitney, 88 N.Y. 648; M. M. Co. v. Stephens, 127 N.Y. 602; Miller v. Benjamin, 142 N.Y. 613.) Upon the facts found by the trial court its conclusion of law that plaintiff's complaint should be dismissed was correct. ( Woodward v. Fuller, 80 N.Y. 312; Miller v. Benjamin, 142 N.Y. 613; Van Clief v. Van Vechten, 130 N.Y. 571; Crouch v. Gutmann, 134 N.Y. 45; D. D. Co. v. F. D. Co., 162 N.Y. 486; Spence v. Ham, 27 A.D. 379; Ketchum v. Harrington, 45 N.Y. S. R. 58.) No material error was committed in receiving or

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rejecting evidence. ( Smith v. Brady, 17 N.Y. 173; Lewis v. Yagel, 77 Hun, 337; Smith v. Countryman, 30 N.Y. 655.)

Saul Bernstein for plaintiff, respondent. The contract and work were performed substantially and in good faith. ( A. B. & C. Co. v. Gerlach, 8 Misc. Rep. 256; Van Clief v. Van Vechten, 130 N.Y. 571; Valk v. McKeige, 62 Hun, 620; Murphy v. S. & S. Co., 82 Hun, 158; Hall v. Long, 34 Misc. 1.) The objections and exceptions to the admission of evidence are good and valid and support the judgment of reversal. ( Matter of N.Y. W. S. & B. R. R. Co., 3 Hun, 231; Carr v. Breese, 81 N.Y. 592; Collier v. Collins, 172 N.Y. 101.)

Joseph Spencer Menline for defendant, respondent.

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...

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