Henry D. Mahler, Inc. v. Spero & Cohen, Inc. ( 1959 )

Per Curiam.

By the clear and explicit terms of the contract between the parties, defendant agreed to supply labor at $3 per man per hour to dismantle steel shelving at the old store and erect it at the new one, and also agreed “ to brace such shelving in such a manner as to prevent collapsing. ’ ’ The trial court’s holding that “the sole responsibility of the defendant thereunder was to supply labor to plaintiff at $3 per man per hour ”, was error.

That the bracing was defective was acknowledged by defendant in its letter of June 18, 1957, plaintiff’s Exhibit 2, wherein defendant promises it would ‘ ‘ have the mechanic add additional reinforcements to the shelving installation, and at your suggestion we will permanently reinforce the shelving at a later date, when the bins are empty.”

The'judgment should be reversed and a new trial ordered, with costs to appellant to abide the event.

Concur — Hecht, J. P., Aurelio and Tilzer. JJ.

Judgment reversed, etc.