G. Bauer, Inc. v. S. G. Hotel Corp.

Judgment of the Supreme Court, Bronx County (Irwin M. Silbowitz, J.), entered on February 17, 1983, which, following a nonjury trial, awarded plaintiff the sum of $6,650, is modified, on the facts, the judgment vacated, without costs or disbursements, and judgment in favor of plaintiff is increased to $17,053.20 for materials and labor plus interest from the date of judgment and the matter of attorney’s fees is remanded for an assessment. I An examination of the record in the instant matter reveals that plaintiff fulfilled all of its obligations under the contract. The oil tank replacement was not performed by plaintiff, and the failure to attach connecting lines thus cannot be attributed to plaintiff. The fact that plaintiff gratuitously agreed to make a temporary connection with a rubber hose to determine whether the boiler was in operating condition should not be used to plaintiff’s detriment. The trial court’s conclusion that plaintiff had not fully performed its work is unsupported by the record and plaintiff should have been awarded $17,053.20, the amount due for materials and labor. Moreover, the contract between the parties herein provided that the customer would be liable for the cost of collection, including attorney’s fees. Consequently, the question of reasonable attorney’s fees should be remanded for the purpose of an assessment. Concur — Kupferman, J. P., Sandler, Carro, Milonas and Alexander, JJ.