Pisani v. Jordan , 85 N.Y.S. 375 ( 1903 )

BLANCHARD, J.

This action is brought to recover $400, which sum was assigned by one Borgia to the plaintiffs out of an amount due from the defendant Borgia upon a contract for building a mausoleum. The assignment was in writing, dated October 28, 1901, and is absolute in its terms. Due notice of this assignment was given to the defendant on November 9, 1901. The defendant and Borgia, the builder, having had disagreements about the work, on February 24, 1902, entered into a written agreement in which were specified the items of work that were to be done by Borgia in order to complete the mausoleum, and stating that, when the work specified therein should be completed, “same will settle all differences on account of marble work done by said Borgia on said mausoleum.” Upon the execution and delivery of this contract the defendant paid Borgia $201 on account of the contract price for building the mausoleum. The evidence establishes the facts that since notice of said assignment to the defendant he had paid Borgia of the contract price said sum of $201, and he still retains in his hands of said contract price the sum of $400 to cover the said amount assigned to the plaintiff. The defendant contends that the plaintiff is not entitled to this $400, because Borgia has not completed the work on said mausoleum according to the terms of his contract. The evidence does not sustain this contention. The work specified in the agreement of settlement dated February 24, 1902, appears to have been substantially completed by Borgia. There was no mention in the settlement contract of any defect in the work because of stains in the marble, due to Borgia’s using improper materials, and the defendant’s refusal to pay the plaintiff’s claim based on that ground is improper. Defendant testified, that these stains were in the marble on February 24, 1902, when he made the settlement contract.

The judgment appealed from should be reversed, and a new trial granted, with costs to appellant to abide the event. All concur.