Buccini v. Paterno Const. Co.
| Citation | 170 N.E. 910,253 N.Y. 256 |
| Parties | BUCCINI v. PATERNO CONST. CO. |
| Decision Date | 18 March 1930 |
| Court | New York Court of Appeals |
OPINION TEXT STARTS HERE
Application by Flora May Glen Buccini, as executrix of estate of Alberto Buccini, deceased, for submission to arbitration of a claim for work done by deceased under contract, opposed by the Paterno Construction Company. An order of the Special Term directing the parties to proceed to arbitration was reversed by the Appellate Division (228 App. Div. 604, 237 N. Y. S. 736), and the petitioner appeals.
Order of Appellate Division reversed, and that of Special Term affirmed.
Appeal from Supreme Court, Appellate Division, First department.
James Wilson Young, of New York City, for appellant.
Henry S. Mansfield, of New York City, for respondent.
Alberto Buccini made a contract with the Paterno Construction Company to decorate the ballroom, banquet hall, and swimming pool in a dwelling described as ‘Paterno's Castle’ on Riverside Drive in the city of New York. The character of the decorations was such as to call for the exercise of artistic skill, and there is a provision that all the decorative figured work shall be done by Buccini personally and that only the plain work may be delegated to mechanics. There is also this provision: ‘All questions that may arise under this contract and in the performance of the work thereunder shall be submitted to arbitration at the choice of either of the parties.’
Buccini died while the work was in progress. The contract being personal, the effect of his death was to terminate the duty of going forward with performance, but to leave the owner liable for benefits received. Wolfe v. Howes, 20 N. Y. 197, 75 Am. Dec. 388;Spalding v. Rosa, 71 N. Y. 40, 27 Am. Rep. 7;Lacy v. Getman, 119 N. Y. 109, 23 N. E. 452, 6 L. R. A. 728, 16 Am. St. Rep. 806; 3 Williston on Contracts, § 1973. When the value of the benefits was disputed, the executrix made demand that the controversy be submitted to arbitration. Her petition was granted by the Supreme Court at Special Term and denied at the Appellate Division. An appeal to this court followed.
‘All questions that may arise under this contract and in the performance of the work thereunder shall be submitted to arbitration at the choice of either of the parties hereto.’ We think the controversy as to value is within the range of that provision. Into every contract of personal service the law reads ‘this implied condition’ that sickness or death shall be an excuse for nonperformance. Spalding v. Rosa, supra, at page 44; Dolan v. Rodgers, 149 N. Y. 489, 493, 495,44 N. E. 167. The parties may say by their contract what compensation shall be made in the event of that excuse. The award will then conform to the expression of their will. They may leave the subject open, to be governed by the law itself. The award will then conform to the principles of liability in quasi contract and to the considerations of equity and justice by which that liability is governed. In either event the controversy is one that has its origin in the contract and in the performance of the work thereunder, just as much as if the work had been completed under a contract silent as to price, and the controversy had relation to the reasonable value. Death of the contractor has not nullified the contract in the sense of emancipating the claimant from the restraint of its conditions. They limit her at every turn. She cannot stir a step without reference to the contract, nor profit by a dollar without adherence to its covenants. Cf. Reeder v. Sayre, 70 N. Y. 180, 184,26 Am. Rep. 567. The interrupted work may have been better than any called for by the plans. Even so, there can be no recovery if the contractor willfully and without excuse has substituted something else. Jacob & Youngs, Inc., v. Kent, 230 N. Y. 239, 129 N. E. 889, 23 A. L. R. 1429. The value proportionately distributed may be greater than the contract...
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...to a contract agree not only to bind themselves, but to bind their personal representatives. [ Buccini v. Paterno Construction Co. , 253 NY 256, 170 NE 910 (1930).] Another presumption which would appear fairly conclusive is that a paper served by mail was indeed served on the date of the a......
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Alternatives to Testimonial and Physical Proof
...to a contract agree not only to bind themselves, but to bind their personal representatives. [ Buccini v. Paterno Construction Co. , 253 NY 256, 170 NE 910 (1930).] Another presumption which would appear fairly conclusive is that a paper served by mail was indeed served on the date of the a......
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Alternatives to Testimonial and Physical Proof
...to a contract agree not only to bind themselves, but to bind their personal representatives. [ Buccini v. Paterno Construction Co. , 253 NY 256, 170 NE 910 (1930).] Another presumption which would appear fairly conclusive is that a paper served by mail was indeed served on the date of the a......