Garofano Construction Co. v. City of New York , 169 N.Y.S.2d 212 ( 1957 )

can see no ambiguity in the contract between the parties or that there was occasion to submit any issue, other than one of damages, to the jury. The plans quite clearly indicated that all of the property in question, except the crane, was to become the property of the contractor, and equally clearly indicated that the crane was not in this category. The court should have so decided the issue as a matter of construction of the contract. The jury’s verdict accorded with what the decision should have been in all respects except as to the crane. That piece of property was erroneously awarded to the plaintiff. Judgment appealed from modified to remit the action to Trial Term for a reassessment of damages, excluding the crane, and for the entry of judgment upon the reassessment. Settle order. Concur — Peck, P. J., Breitel, Botein, Rabin and Valente, JJ.