Untermeyer v. Bernhauer

• Decision Date: 03 May 1887
• Citation: 105 N.Y. 521,11 N.E. 847
• Parties: UNTERMEYER and another v. BERNHAUER.
• Court: New York Court of Appeals Court of Appeals

105 N.Y. 521

11 N.E. 847

UNTERMEYER and another

v.BERNHAUER.

Court of Appeals of New York.

May 3, 1887.

Appeal by defendant from an order of the supreme court, general term, in the First department, affirming an order of reference made at special term, on the ground that the trial of the issues involves the examination of a long account.

Philip L. Wilson, for appellant.

Sam'l Untermeyer, for respondents.

RAPALLO, J.

This is an action brought against a builder, to recover damages for the breach of a contract to erect for the plaintiffs a dwelling-house in the city of New York within a stipulated time. The contract price of the work was $25,500, payable in installments. The contract was dated October 21, 1884, and by its terms the defendant agreed that he would fully inclose the building, so as to protect it against the weather, on or before the twentieth of December, 1884, and would complete it for occupancy on or before the thirtieth of April, 1884; that he would commence the construction of the building immediately upon the execution of the contract, and would at no time between the commencement of the work and its completion cease to work thereon with a sufficient force, etc. The breach alleged in the complaint is that the defendant, after having commenced the erection of the building under this contract, ceased work thereon, and abandoned the work before its completion, whereby the plaintiffs were deprived of the use of the building, and were compelled to employ other persons to complete the contract, at a cost exceeding the contract price, and sustaining damages to the amount of $7,000.

The defendant, by his answer, denies the alleged breach; sets up that the agreement was unconscionable, and was executed by mistake and under duress; that it was prepared by the plaintiffs, who are lawyers, and did not fairly embody a previous verbal agreement under which the defendant had under taken the job, and commenced the performance of the work, and that he was coerced into its execution, after having made and contracted for large expenditures on the building; that the plaintiffs themselves violated the contract; and also that the plaintiffs are indebted to him for a balance due for work and labor on the building, which he sets up as a counter-claim; and he demands judgment that the contract be declared void, and deemed to have been executed under duress of property, and also for his counter-claim.

The plaintiffs moved for a reference of the action, and the court, at special term, made an order referring all the issues therein to a referee for hearing and determination. On appeal to the general term that order was affirmed, and the defendant now appeals.

The case presented by the complaint is clearly one in which both parties are entitled, under the constitution, to a trial by jury, and consequently it was beyond the power of...