McGovern v. City of New York
| Decision Date | 20 March 1923 |
| Citation | 235 N.Y. 275,139 N.E. 266 |
| Parties | McGOVERN et al. v. CITY OF NEW YORK. |
| Court | New York Court of Appeals Court of Appeals |
Action by Patrick McGovern and others against the City of New York. A judgment of the Trial Term, entered on a verdict of the jury in favor of plaintiff, was modified by the Appellate Division and as modified affirmed (202 App. Div. 317,195 N. Y. Supp. 925), and both parties appeal.
Judgment of the Appellate Division and of the Trial Term modified by granting a new trial of the first cause of action and by reducing the judgment upon the other causes of action.
See, also, 234 N. Y. 377, 138 N. E. 26.
Appeal from Supreme Court, Appellate Division, First department.
Thomas F. Conway, Joseph A. Kellogg, and Thomas E. O'Brien, all of New York City, for plaintiffs.
George P. Nicholson, Corp. Counsel, of New York City (John F. O'Brien and Willard S. Allen, both of New York City, of counsel), for defendant.
The plaintiffs are contractors engaged in the construction of the Lexington Avenue subway in the city of New York. They sue for a balance alleged to be due upon the completion of the work. Six causes of action are stated in the complaint. At the trial the plaintiffs succeeded upon all. The Appellate Division cut out the recovery upon the first cause of action. This was for underpinning the stoops along the route. Elimination of that item reduced the judgment from $330,381.28 to $131,485.90. In other respects the verdict was approved. There are cross-appeals in this court.
[1][2] We think the plaintiffs' recovery upon the first cause of action was excessive, but that the Appellate Division erred in denying it altogether. The specifications provide that the contractors shall be paid for underpinning buildings ‘per lineal front foot of building underpinned.’ The plaintiffs ask compensation for underpinning 67 stoops. In 38 instances, they underpinned at the same time the front walls of the buildings to which the stoops were appurtenant. We find no basis for their claim that, in addition to the payment which has been made to them for the walls, they should have payment for the stoops. In 29 instances, they underpinned stoops so situated that it was unnecessary to underpin the walls. We think they are entitled in such circumstances to treat the underpinning of a stoop as the underpinning of a building, and to receive payment accordingly. Even where these conditions existed, their claim, however, is excessive. They were paid by the verdict of the jury for every foot of the perimeter. They should have been paid per lineal front foot, the front of the stoop for this purpose being considered to be the front of the building. A new trial of the first cause of...
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