Bowne of New York, Inc. v. International 800 Telecom Corp.

CourtNew York Supreme Court Appellate Division
Writing for the CourtBefore MILONAS
Citation576 N.Y.S.2d 573,178 A.D.2d 138
Decision Date03 December 1991
PartiesBOWNE OF NEW YORK, INC., Plaintiff-Respondent, v. INTERNATIONAL 800 TELECOM CORP., Defendant-Appellant.

Page 573

576 N.Y.S.2d 573
178 A.D.2d 138
BOWNE OF NEW YORK, INC., Plaintiff-Respondent,
v.
INTERNATIONAL 800 TELECOM CORP., Defendant-Appellant.
Supreme Court, Appellate Division,
First Department.
Dec. 3, 1991.

Page 574

Before MILONAS, J.P., and ROSENBERGER, KUPFERMAN, ROSS and ASCH, JJ.

MEMORANDUM DECISION.

Judgment, Supreme Court, New York County (Harold Tompkins, J., and a jury), entered June 4, 1990, in favor of plaintiff and against defendant in the amount of $326,453.78, inclusive of interest and costs, is unanimously affirmed, with costs. Order of the same court entered on or about September 25, 1990, which denied [178 A.D.2d 139] defendant's motion pursuant to CPLR 4404 to set aside the jury verdict, is unanimously affirmed, with costs.

Although the notice of appeal was filed more than 30 days after entry of the judgment, it does not appear that plaintiff served on defendant a copy of the judgment with notice of entry more than 30 days prior to the service of the notice of appeal (CPLR 5513[a]. In the absence of such proof, this court will not assume that the appeal is untimely (Matter of Nancy C. v. John J.O'C., 50 A.D.2d 800, 375 N.Y.S.2d 630).

Giving the jury verdict the deference that it is due (see, Martin v. McLaughlin, 162 A.D.2d 181, 557 N.Y.S.2d 1), we agree with IAS that it should not be set aside as against the weight of the evidence. Plaintiff submitted competent, if conflicting, proof that defendant's officer and director was expressly acting on behalf of the defendant, as opposed to any related company, when he accepted plaintiff's services and agreed to pay for them. Whether the parties' conduct evinces a mutual intent to be bound by a purported agreement (Martin H. Bauman Associates, Inc. v. H & M International Transport, Inc., 171 A.D.2d 479, 483, 567 N.Y.S.2d 404, 407; Jemzura v. Jemzura, 36 N.Y.2d 496, 503-504, 369 N.Y.S.2d 400, 330 N.E.2d 414), and whether in an action based on an alleged account stated, objection is made within a reasonable time after receipt of the account (Compare, Camp Dresser & McKee v. City of Niagara Falls, 142 A.D.2d 973, 530 N.Y.S.2d 391), are questions of fact that were properly submitted to the jury, and decided on a record sufficient to support the verdict.

We agree with defendant that the general verdict on liability for breach of contract was inappropriate, since the theories of express contract and of contract implied in fact, both of which were presented to the jury, are...

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23 practice notes
  • Transcience Corp. v. Big Time Toys, LLC, No. 13–CV–6642 (ER).
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • September 23, 2014
    ...and of contract implied in fact ... are mutually exclusive.’ ” Id. at 414 (quoting Bowne of N.Y., Inc. v. Int'l 800 Telecom Corp., 178 A.D.2d 138, 576 N.Y.S.2d 573, 574 (1st Dep't 1991)). While the Amended Complaint alleges that there was a valid express contract, Plaintiffs have not pleade......
  • Transcience Corp. v. Big Time Toys, LLC, No. 13–CV–6642 ER.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • September 23, 2014
    ...and of contract implied in fact ... are mutually exclusive.’ ” Id. at 414 (quoting Bowne of N.Y., Inc. v. Int'l 800 Telecom Corp., 178 A.D.2d 138, 576 N.Y.S.2d 573, 574 (1st Dep't 1991) ). While the Amended Complaint alleges that there was a valid express contract, Plaintiffs have not plead......
  • FDIC v. First Interstate Bank of Denver , NA, Civil Action No. 93-B-85.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • July 10, 1996
    ...Inc. v. Rocky Mountain Airways, Inc., 713 P.2d 882 (Colo.1986). See also Bowne of New York, Inc. v. International 800 Telecom Corp., 178 A.D.2d 138, 576 N.Y.S.2d 573 (1991). A definitive choice of law determination is inappropriate and premature at this Rule 12 phase of the III. REFCO's mot......
  • Bader v. Wells Fargo Home Mortgage Inc., Nos. 09 Civ. 9410(RJH)
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • March 29, 2011
    ...of express contract and of contract implied in fact ... are mutually exclusive.” Bowne of New York, Inc. v. Int'l 800 Telecom Corp., 178 A.D.2d 138, 576 N.Y.S.2d 573, 574 (1st Dep't 1991). Since the 2009 Area Manager Plan and the 2009 Branch Manager Plan are written contracts governing the ......
  • Request a trial to view additional results
21 cases
  • Transcience Corp. v. Big Time Toys, LLC, No. 13–CV–6642 (ER).
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • September 23, 2014
    ...and of contract implied in fact ... are mutually exclusive.’ ” Id. at 414 (quoting Bowne of N.Y., Inc. v. Int'l 800 Telecom Corp., 178 A.D.2d 138, 576 N.Y.S.2d 573, 574 (1st Dep't 1991)). While the Amended Complaint alleges that there was a valid express contract, Plaintiffs have not pleade......
  • Transcience Corp. v. Big Time Toys, LLC, No. 13–CV–6642 ER.
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • September 23, 2014
    ...and of contract implied in fact ... are mutually exclusive.’ ” Id. at 414 (quoting Bowne of N.Y., Inc. v. Int'l 800 Telecom Corp., 178 A.D.2d 138, 576 N.Y.S.2d 573, 574 (1st Dep't 1991) ). While the Amended Complaint alleges that there was a valid express contract, Plaintiffs have not plead......
  • FDIC v. First Interstate Bank of Denver , NA, Civil Action No. 93-B-85.
    • United States
    • United States District Courts. 10th Circuit. United States District Court of Colorado
    • July 10, 1996
    ...Inc. v. Rocky Mountain Airways, Inc., 713 P.2d 882 (Colo.1986). See also Bowne of New York, Inc. v. International 800 Telecom Corp., 178 A.D.2d 138, 576 N.Y.S.2d 573 (1991). A definitive choice of law determination is inappropriate and premature at this Rule 12 phase of the III. REFCO's mot......
  • Bader v. Wells Fargo Home Mortgage Inc., Nos. 09 Civ. 9410(RJH)
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • March 29, 2011
    ...of express contract and of contract implied in fact ... are mutually exclusive.” Bowne of New York, Inc. v. Int'l 800 Telecom Corp., 178 A.D.2d 138, 576 N.Y.S.2d 573, 574 (1st Dep't 1991). Since the 2009 Area Manager Plan and the 2009 Branch Manager Plan are written contracts governing the ......
  • Request a trial to view additional results

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