Frank M. Herbert, Jr., Inc. v. M & P Scrap Iron & Metal Corp.
| Decision Date | 17 May 1963 |
| Citation | 39 Misc.2d 180,240 N.Y.S.2d 407 |
| Parties | FRANK M. HERBERT, JR., INC., Plaintiff, v. M & P SCRAP IRON & METAL CORPORATION, Defendant. |
| Court | New York City Court |
George I. Janow, New York City, for plaintiff.
Cooper, Abrams & Herman, Deer Park, Gerald F. Hoffer, of counsel, for defendant.
The above action came on for trial before me with a jury at which time by consent of both parties a mistrial was declared. It was also agreed by counsel for both parties that the matter remain with me as a motion on behalf of plaintiff for summary judgment pursuant to Rule 113 of the Rules of Civil Practice and a cross-motion on behalf of the defendant for an order pursuant to Rules 107, 112 and 113 of the Rules of Civil Practice, striking out plaintiff's complaint and for judgment in favor of defendant. Pursuant to the above mentioned agreement and pursuant to a written stipulation both parties have submitted formal motions accordingly.
The plaintiff is a rigger and sets forth in his complaint a claim for Five Thousand one hundred dollars as a balance due for work, labor and services pursuant to a written contract. He has received Twenty-five hundred dollars on account of said contract. This contract involved the moving of a very large machine from a railroad car to the defendant's place of business.
The defendant has interposed an answer consisting of a general denial, three separate and distinct defenses and two counterclaims. The first defense is payment, the second defense alleges res adjudicata and the third defense is based upon breach of contract in that there was a failure of due performance, predicated upon plaintiff's negligence in handling of the machine which resulted in extensive damage to it and also in loss of business during the period of time that the machine was being repaired.
The first counterclaim is for damages caused by defective performance under the contract. The second counterclaim asserts a separate agreement between defendant and plaintiff for the hiring of equipment and manpower by plaintiff from the defendant for which plaintiff allegedly agreed to pay Twenty-five hundred dollars. This agreement is claimed to have been made during the time the plaintiff was performing its work under the written contract which is the subject matter of this suit.
The facts and material issues, generally speaking, are not in dispute. The defendant admits the execution of the written contract, that only Twenty-five hundred dollars has been paid to plaintiff and that the balance of Fifty-one hundred dollars due under the contract has not been paid. Defendant also admits that the plaintiff did move the machine from the railroad car to the defendant's place of business, but claims that in so doing the plaintiff was negligent and caused the machine to drop a certain number of inches with resultant damage.
Because of such damage the defendant brought an action in the Supreme Court, Suffolk County, before the commencement of the present suit against the plaintiff, alleging negligence as hereinabove explained and claiming injury in the sum of Forty-thousand dollars.
A trial was had which lasted five days and a verdict was rendered by a jury awarding judgment to this defendant in the sum of Four thousand dollars, which judgment was paid by the plaintiff herein to the defendant and the time to appeal therefrom has now expired.
Plaintiff contends that it is entitled to recover in the present action on the theory that a contractor may have the contract price if the contract is substantially performed less any sums which would compensate the other party for incomplete services or damage caused by negligence. Since the judgment of the Supreme Court, Suffolk County, has been paid the plaintiff contends that the defendant has been made whole for whatever monetary loss was caused to it or to the machinery by the plaintiff's negligence and accordingly it demands the balance of the contract price, to wit, Fifty one hundred dollars.
The defendant on the other hand argues that the plaintiff's action is barred under the doctrine of res adjudicata by virtue of the judgment in the Supreme Court, Suffolk County, between the same parties in favor of the defendant in this case. It is the defendant's contention that plaintiff had a full opportunity to be heard and to assert and protect his rights even though it failed to do so. The defendant asserts that plaintiff is now estopped from bringing this action and claims that the principle of res adjudicata applies to all issues which could have or might have been raised and litigated by way of defense or counterclaim in the previous action. The defendant submits that since the jury in the Supreme Court case found this plaintiff negligent in the performance of the contract that such determination constitutes an adjudication which prevents the plaintiff from claiming in this action that there was due and proper performance of the contract.
The main issue before me is whether the judgment in the Supreme Court, Suffolk County, in favor of the defendant and against the plaintiff herein by...
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Frank M. Herbert, Inc. v. M & P Scrap Iron & Metal Corp.
...Thereafter plaintiff brought this action to recover the balance of the contract price of $5100. The court below, in an opinion (39 Misc.2d 180, 240 N.Y.S.2d 407) held that plaintiff was barred from maintaining the action for failure to substantially perform its contractual obligations, as e......
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Frank M. Herbert, Inc. v. M & P Scrap Iron & Metal Corp.
...with costs. No opinion. [For Appellate Term's opinion, see 41 Misc.2d 1020, 247 N.Y.S.2d 193; for Civil Court's opinion, see 39 Misc.2d 180, 240 N.Y.S.2d 407.] BELDOCK, P. J., and UGHETTA, BRENNAN, HILL and HOPKINS, JJ., ...