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

• Decision Date: 03 December 1991
• Citation: 576 N.Y.S.2d 573,178 A.D.2d 138
• Parties: BOWNE OF NEW YORK, INC., Plaintiff-Respondent, v. INTERNATIONAL 800 TELECOM CORP., Defendant-Appellant.
• Court: New York Supreme Court — Appellate Division

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.

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 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 mutually exclusive (see, Davis v....