Van Kannel Revolving Door Co. v. Astor , 104 N.Y.S. 653 ( 1907 )

Ingraham, J.

(dissenting):

I think this judgment should be affirmed. It seems to me that the arrangement between W. & J. Sloane and their sub-contractor, Grissler & Sons, entered into before any order was given to the plaintiff or any materials furnished or work done by it under its contract with Grissler & Sons, substituted Ferguson and Hilbrand as contractors and withdrew the work that they were to do from the contract between W. &'J. Sloane and Grissler & Sons. The form adopted was an. agreement by which the amount payable to Ferguson and Hilbrand was to be deducted from the amount that W. & J. Sloane were to pay Grissler & Sons. But I think the court should look beneath the form that was adopted and get at the real intention of the parties as evidenced by the whole transaction. The agreement of W. & J. Sloane to Ferguson and Hilbrand was not to pay to-them any part of the. money that was payable under the contract to Grissler .& Sons, but was a new promise to pay for the work to be done, by Ferguson and Hilbrand which was necessary to carry out the contract between W. & J. Sloane and the ownéf of the building. Ferguson and Hilbrand thus became original contractors with W. & J. Sloane by which W. & J. Sloane were bound to pay them for the work and material that they furnished for the building, and while the contract made between Grissler & Sons and Ferguson, and Hilbrand was adopted as the basis of W."& J. Sloane’s contract with Ferguson and Hilbrand, the effect of the arrangement was that Grissler & Sons were relieved from the performance of their contract so far as it related to what was to be furnished by Ferguson and Hilbrand, so that a new contract was made by which Ferguson and Hilbrand furnished certain work and materials directly to W. & J. Sloane and with the performance of that work Grissler & Sons had nothing- to do. It seems to me, therefore, that payment for this work and materials furnished by Ferguson and Hilbrand never became moneys due .to Grissler & Sons for which a contractor with Grissler & Sons would, after the substituted arrangement, be entitled to have applied to his contract..

Hoi* do I think the sum of $12,000- that W. & J. Sloane agreed to allow Grissler & Sons was a part of the contract price. The payment of that sum to Grissler & Sons was in consideration of their allowing W. & J. Sloane to select the persons to do this particular work. It was a pure gratuity — not a payment for the work that Grissler & Sons had agreed to do and so was not to be considered as ■ money due under the contract. It was the consideration paid by W. & J. Sloane to allow the new contract to be made with other persons to do a part of the work to be done. It seems to me there was a complete- substitution of contractors and after the execution of these agreements W. & J. Sloane became directly responsible to Ferguson and Hilbrand. Grissler & Sons' were never entitled to receive the money that W. & J; Sloane paid them- for the work that had been done under the contract between W. & J. Sloane and Ferguson a-nd Hilbrand, and the $12,000 paid to Grissler & Sons from W. & J. Sloane never was a part of the money due under the , contract between W. & J. Sloane and Grissler & Sons but was money due under the'new arrangement by which a portion of the work that Grissler & Sons'had’agreed to' do was to be done by the contractors selected by W. & J. Sloane and to be paid to them, not by Grissler & Sons but by W. & J.- Sloáne.

-Patterson, P. J., concurred.

Judgment reversed and new trial ordered, without costs of appeal to either party.