John H. Reetz, Inc. v. Stackler

• Decision Date: 01 April 1960
• Citation: 24 Misc.2d 291,201 N.Y.S.2d 54
• Parties: JOHN H. REETZ, INC., Plaintiff, v. Walter G. STACKLER and Leonard L. Frank, et al., J. V., a limited partnership, Mid-Island Shopping Plaza, Inc., and Wallen Contracting Corp., Defendants.
• Court: New York Supreme Court

Page 54

201 N.Y.S.2d 54

24 Misc.2d 291

JOHN H. REETZ, INC., Plaintiff, v.Walter G. STACKLER and Leonard L. Frank, et al., J. V., a limited partnership, Mid-Island Shopping Plaza Inc., and Wallen Contracting Corp., Defendants.

Supreme Court, Special Term, Nassau County, Part II.

April 1, 1960.

Henry J. Kalinowski, Hempstead, for plaintiff.

Sprague & Stern, Mineola, George C. Pratt, Mineola, of counsel, for defendants.

MARIO PITTONI, Justice.

The plaintiff seeks to foreclose a mechanic's lien filed against the defendants for the alleged balance due on a written contract and for the claimed 'extra and/or additional work'.The contract was for the installation of an acoustical ceiling at the Mid-Island Bowl in Hicksville for $32,000.The defendants interposed two counterclaims seeking damages for (a)the plaintiff's delay in completing the ceiling, and (b)the plaintiff's wilful exaggeration of its lien.The action against Mid-Island Shopping Plaza, Inc. was discontinued by stipulation.

The principal issue is the meaning of the contract entered into on August 22, 1957, and in particular the rider which stated 'Contractor shall furnish all labor and materials necessary for the complete installation of mechanical suspension system, Owens-Corning Fibreglass ceiling board, insulation, sheetrock, fireproofing materials, moldings, corner moldings and cut-outs as per plans and specifications of Lathrop Douglass and Robert Levien.

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'It is understood that a two hour fire rating is now required on all areas and contractor assumes responsibility for putting in ceiling, curtain walls, etc., which shall meet Town of Oyster Bay building requirements and any other governing codes.'(Emphasis added.)

This problem of contract construction has arisen by reason of the Town of Oyster Bay building inspector's insistence on certain ceiling changes and additions to meet the 'two hour fire rating' etc.; and these changes and additions caused the claimed 'extra and/or additional work' for which the plaintiff seeks payment over and above the contract price.The plaintiff complied with the building inspector's requirements.

The plaintiff contends that the clause in issue needs interpretation by other evidence, and that as so interpreted the contract did not obligate the plaintiff to meet such requirement.The plaintiff maintains that a specific set of plans and specifications was incorporated into the contract, that the ceiling which finally had to be installed to meet the Town's requirements differed from the original set of plans and specifications, that it was obligated to comply with Town requirements in contradiction to that original set only if the requirements were as to minor details, and that two clauses of the rider were repugnant to each other: one called for a specific ceiling per plans and specifications, and the other for a ceiling which would meet 'a two hour fire rating' requirement of the Town.

The defendants argue, however, that the language is clear on its face, and that it means just what it says: 'contractor assumes responsibility for putting in ceiling, * * * which shall meet Town of Oyster Bay building requirements * * *'.

The plaintiff had the burden of proving that the ceiling was to be constructed only according to the claimed set of plans and specifications, and has failed to meet the obligation by a preponderance of evidence.John Reetz, an officer of the plaintiff, said that on the date of the contract, August 22, 1957, he received a complete set of drawings on the Mid-Island Bowl, dated August 2, 1957 and revised August 13, 1957, and that contract was to erect a ceiling in compliance with a sheet attached to that set of drawings.However, these drawings were not attached to the contract, were not specifically referred to in the contract, were not produced at the trial, and their absence was not satisfactorily accounted for.Testimony by Mr. Reetz and a friend as to how Mr. Reetz mailed them as a favor to this friend, and how the drawings were mailed back to Mr. Reetz and never received fails to convince.Furthermore, no tracer was filed with the post office department to recover these important documents, and the friend has no record of transmittal of these drawings to Mr. Reetz.The defendants' witness, Franklin Frank, the Wallen Contracting Corp. officer who negotiated this contract, denied that he showed or gave Mr. Reetz any such drawings, or that the ceiling was to be erected according to them.Although the testimony of a witness to corroborate Mr. Frank was valueless, the testimony of Mr. Frank is more acceptable in the light of the surrounding circumstances.

The Court also finds no repugnancy between the two clauses of the rider; the clauses are reconcilable; the intention of the parties is clearly set forth.The plaintiff specifically assumed the obligation of erecting a ceiling with a two hour fire rating.The provision of the...