Hyman v. New York Mortgage & Security Co. ( 1908 )

Gaynor, J. (concurring in the result):

"When the motion to dismiss had been made, and permission had been given to the plaintiff to put in further evidence, the learned trial Justice said to the counsel for the plaintiff': “ The particular point in question is under the 9th subdivision of paragraph 7”, viz., Of the contract for the making of the building loan by installments as the work progressed. That subdivision is the usual one in such contracts, viz., that the defendant should not be obliged to pay the money at any stage if the plaintiff should not erect the buildings in accordance with the plans and specifications on file in the building department. The allegation of the complaint that the buildings had been completed is denied by the answer, and up to the time of the motion' for a non-suit no evidence had been given of their completion according to the plans and specifications. It was" therefore in order for a non-suit to be granted. But mingled with the loose and irrelevant evidence given after the case had been reopened is the following bald sentence by the plaintiff: “ I completed these houses in accordance with the plans and specifications This was the pivotal issue, and this meager evidence upon it came so late, when it was in order first of all, and indeed was about the only thing the plaintiff had to prove by oral evidence, and was mixed up with such a mass of irrelevancies, that the learned trial Justice is quite excused for having overlooked it. Or he may have regarded it as a mere statement of a conclusion, which is never ■ probative; but it was a little more than that, and made out a prima facie case which called upon the defendant to show the exact particulars in which the contract was not complied with. Ho claim was made that the test was that the buildings should be completed to the satisfaction of the defendant, and the dismissal was not on that ground. Ho one seems to have thought of such a thing.

Woodward, Jenks and Hooker, JJ., concurred in both opinions.

Judgment reversed and new trial granted, costs to abide the event.