204 N.Y. 404, Dennison Construction Co. v. McKenna

Citation:204 N.Y. 404
Party Name:DENNISON CONSTRUCTION COMPANY, Plaintiff, v. MARGARETHA MANNESCHMIDT, Respondent, and PATRICK H. MCKENNA et al., Comprising the Firm of MCKENNA & WOOD, Appellants.
Case Date:February 13, 1912
Court:New York Court of Appeals
 
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Page 404

204 N.Y. 404

DENNISON CONSTRUCTION COMPANY, Plaintiff,

v.

MARGARETHA MANNESCHMIDT, Respondent, and PATRICK H. MCKENNA et al., Comprising the Firm of MCKENNA & WOOD, Appellants.

New York Court of Appeal

February 13, 1912

Submitted January 25, 1912.

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COUNSEL

John H. Durack and Herman A. Brand for appellants. Where work has been abandoned by the contractor and the contract contains a clause whereby the owner reserves the right to complete, after a breach by the contractor, or after the failure to do so, upon notice, the owner may elect either to declare the forfeiture or complete the work himself. If he elects to complete he waives the right to declare a forfeiture, and the contractor is entitled to receive any balance of the contract price remaining over and above the cost of completion. ( Van Clief v. Van Vechten, 130 N.Y. 571; Ogden v. Alexander, 143 N.Y. 356; White v. Livingston, 69 A.D. 361; Graf v. Cunningham, 103 N.Y. 369; Fraenkel v. Friedmann, 199 N.Y. 351; Steiger v. London, 141 A.D. 382.)

Addison S. Sanborn for respondent. Performance, substantial or otherwise, not having been shown, neither the plaintiff nor the defendant lienors, McKenna & Wood, were entitled to recover. ( Spence v. Ham, 163 N.Y. 220; E. L. & C. Co. v. Worthington, 186 N.Y. 407;

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Schultze v. Goodstein, 180 N.Y. 248; Mitchell v. Williams, 80 A.D. 527; Glacius v. Black, 50 N.Y. 145; Norton v. U.S. W. P. Co., 89 A.D. 238.)The plaintiff having abandoned the contract, the defendant Manneschmidt was at liberty to proceed with the completion of the contract upon her own account, without being liable to account to the plaintiff or its sub-contractor for the cost and completion. ( Ogden v. Alexander, 140 N.Y. 356; Fraenkel v. Friedmann, 199 N.Y. 351.)

VANN, J.

The judgment rendered at Special Term rests on the twelfth finding of fact, which for convenience we quote again as follows: 'XII.That thereafter the defendant, Manneschmidt, proceeded, to and did complete the performance of said contract, for the account of the plaintiff.'

This finding involves two questions of fact, whether the owner completed performance of the contract and if so whether...

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