Cauldwell-Wingate Co. v. City of New York
| Decision Date | 19 November 1935 |
| Parties | CAULDWELL-WINGATE COMPANY, Appellant, v. CITY OF NEW YORK, Respondent. |
| Court | New York Court of Appeals Court of Appeals |
OPINION TEXT STARTS HERE
Appeal from a judgment of the Appellate Division of the Supreme Court in the First Judicial Department (242 App.Div. 626, 271 N.Y.S. 1106), entered June 29, 1934, affirming a judgment in favor of defendant entered upon a decision of the court at a Trial Term, in an action to recover for alleged breach of contract. The plaintiff, a general contractor, constructed the Municipal Building in the borough of Brooklyn under a contract with defendant entered into on July 29, 1924, and received and accepted the final payment, as called for in the contract, in May, 1927, at the same time, at the request of the defendant, executing a release document which reserved claims for damages, in estimated amounts, which were the basis of this action but which were not conceded by the defendant. Article LIII of the contract provided that: ‘The acceptance by the Contractor of the final payment aforesaid shall be and shall operate as a release to the President, the City, and each official and employee, representative and agent thereof from all claim and liability to the Contractor for anything done or furnished for, or relating to the work, or for any act or omission of the President, the City or any person relating to or affecting the work, except only the claim against the City for the remainder, if any there be, of the amounts kept or retained as provided in this contract and for interest, if any, on the final payment.’ The Trial Term found that defendant had breached the contract by delaying the progress and completion of the work, by prematurely moving into the building, and by exacting certain work, services, and material not called for by the contract; but held, a conclusion of law, that under article LIII of the contract the receipt and acceptance by the plaintiff of the final payment as called for in the contract ‘operated as a release of its right to recover the aforesaid damages, and by reason thereof, the plaintiff is barred and foreclosed from recovering herein.’Robert H. Elder, Otho S. Bowling, Copal Mintz, and Harry Smith, all of New York City, for appellant.
Paul Windels, Corp. Counsel, of New York City (Paxton Blair and Ralph W. Thomas, both of New York City, of counsel), for respondent.
Judgment affirmed, with costs.
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