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85 Misc. 35

Martin v. Oberle

Appellate Terms of the Supreme Court of New York · decided 1914-04-15

Appeal by the defendants Oberle and American Surety Company from a judgment of the City Court of the city of New York entered upon a decision in favor of the plaintiff after a trial before the court sitting without a jury.

Cited by 2 later decisions — most recently August 1931

2 federal appellate ·

Good law ✅— No negative treatment on recordhow we know

Decided 1914-04-15

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Bijur, J. (concurring).

¶1The main difficulty in this case arises out of the cryptic language of paragraph 17. If, when properly interpreted, it means that the contractor shall allow $600, provided he be not required to ‘ ‘ finish the walls in rooms 2, 3, and 5 ” as required by the contract, then, plainly, the plaintiff’s bid included that work, and, if he was not called upon to do it, he must deduct $600 from the contract price. But we are not left in doubt as to the interpretation, because the architect, as provided in the contract, has interpreted it. He says: The allowance of $600 is to be construed as applying to the ‘ finishing of walls,’ namely such ornamentation as may be required in rooms 2, 3 and 5 in addition to the plain plastering which is called for in Paragraph 10 of this heading.” The authoritative interpretation of the disputed clause, therefore, is that it refers to an allowance to be made by the owner to the contractor in case the contractor be called upon to do some finishing on the walls in rooms 2, 3 and 5 in addition to what was called for by the contract. It is plain, therefore, that the plaintiff is entitled to at least his entire contract price regardless of whether he was called upon to do this finishing or not.

¶2I concur in the entire result reached by Mr. Justice Lehman.

¶3Judgment modified, and, as modified, affirmed, without costs.

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