Taylor & Jennings, Inc. v. Bellino Bros. Const. Co., Inc.

• Decision Date: 13 December 1984
• Docket Number: No. 2,No. 1,1,2
• Citation: 106 A.D.2d 779,483 N.Y.S.2d 813
• Court: New York Supreme Court — Appellate Division
• Parties: TAYLOR & JENNINGS, INC., Respondent, v. BELLINO BROTHERS CONSTRUCTION COMPANY, INC., Appellant. (Action) BELLINO BROTHERS CONSTRUCTION COMPANY, INC., Appellant, v. TRAVELERS INDEMNITY COMPANY, Defendant and Third-Party Plaintiff-Respondent; Taylor & Jennings, Inc., et al., Third-Party Defendants. (Action)

Page 813

483 N.Y.S.2d 813

106 A.D.2d 779

TAYLOR & JENNINGS, INC., Respondent, v. BELLINO BROTHERS CONSTRUCTION COMPANY, INC., Appellant.

(Action No. 1.)

BELLINO BROTHERS CONSTRUCTION COMPANY, INC., Appellant, v. TRAVELERS INDEMNITY COMPANY, Defendant and Third-Party

Plaintiff-Respondent;

Taylor & Jennings, Inc., et al., Third-Party Defendants.

(Action No. 2.)

Supreme Court, Appellate Division,

Third Department.

Dec. 13, 1984.

Wekstein & Fulfree, Yonkers (Richard W. Fulfree, Yonkers, of counsel), for appellant.

Palmer, Peyton & Smith, Binghamton (Martin E. Smith, Binghamton, of counsel), for Taylor & Jennings, Inc.

Hynes, Diamond & Reidy, P.C., New York City (Joseph J. Cooke, New York City, of counsel), for Travelers Indem. Co.

Before MAHONEY, P.J., and KANE, CASEY, WEISS and LEVINE, JJ.

MEMORANDUM DECISION.

Appeal from a judgment of the Supreme Court in favor of plaintiff in Action No. 1 and defendant in Action No. 2, entered November 17, 1983 in Chenango County, upon a decision of the court at Trial Term, without a jury.

Prior to July 2, 1970, Bellino Brothers Construction Company, Inc. (Bellino) entered into a prime contract with the Borough of Naugatuck, Connecticut, to construct a public improvement identified as "Naugatuck-Middlebury Interceptors, Contract No. 1, Rubber Avenue Intercepting Sewer, Borough of Naugatuck, Connecticut" ; work commenced in May, 1970. On or about July 2, 1970, Bellino subcontracted a portion of the prime contract work consisting of laying 3,276.01 lineal feet of concrete sewer pipe and installing 21 concrete manholes to Taylor & Jennings, Inc. (Taylor). Work continued until October 21, 1970, when Taylor left the job following a confrontation with Bellino over the differences between the unit prices for work specified in the prime contract and the unit prices specified in the subcontract. At that time, Taylor had installed 2,293.20 lineal feet of pipe and 14 manholes. Taylor commenced Action No. 1 alleging six causes of action, including rescission, fraud,quantum meruit, fraudulent inducement and breach of contract. Bellino commenced Action No. 2 against Travelers Indemnity Company, Taylor's surety bonding company, which, in turn, commenced a third-party action against Taylor and its officers and shareholders individually. After a nonjury trial, judgment was granted in favor of Taylor for $68,163.23 plus interest, totaling $169,856.40, and the complaint in Action No. 2 together with the third-party complaint were dismissed. Bellino has appealed.

Bellino first contends that the trial court erred in finding fraud because the proof failed to demonstrate that Taylor relied upon any representations made. The record belies this contention. The testimony showed that Taylor's preparation of its own list of unit prices was in fact only "practice", done at Bellino's suggestion, and that, in fact, the parties agreed after discussions that the unit prices set forth in Bellino's prime contract with Naugatuck, less 10% and allowance for material, would be the unit prices in the subcontract. The testimony further showed that Bellino represented it was helping Taylor get started in this type...