The Barber Asphalt Paving Company, Respondent, v. The City of New York, Appellant

The Barber Asphalt Paving Company, Respondent, v. The City of New York, Appellant. First Department, February 17, 1911. See head note in Mack Paving Go. v.- Gity of New York {ante, p. 702). Appeal by the defendant, The City of New York, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 19th day of February, 1910, upon the verdict of a jury rendered by direction of the court, and also from an order entered in said clerk’s office on the 23d day of February, 1910, denying the defendant’s motion for ■ a new trial made xipon the minutes. Terence Farley, for the appellant. L. Laflin Kellogg, for the respondent. [MAJORITY — Dowling, J.:] Dowling, J.: The contract between plaintiff and defendant was entered into on J uly 29,1901, and provided for the regulating and repaving with asphalt pavement of Broadway, from Fourteenth street to Canal street, in the city of New York. The period of maintenance therein provided was ten years,- and the percentage retained as security for ' full performance by the contractor was twenty per cent, whereof four per cent was to be returned to him on the expiration of the sixth-year from the acceptance of the work, and four per cent annually thereafter. - The work ¿was accepted December 2, 1901, the total cost was $199,822.27, whereof $174,276.16 was for new pavement, and the retained .percentage amounted to $34,855.23, whereof $6,971.04 had been returned to the contractors leaving a balance still retained of $27,884.19, for which amount with interest plaintiff-had judgment. The questions presented upon "'this appeal áre similar to those decided in Mack Paving Co. v. City of New York (142 App. Div. 702), and for the reasons therein assigned, no cause of action having been established by the plaintiff, the judgment and order appealed from must be reversed and a new■ trial ordered, with costs to the appellant to abide the event. Ingraham, P. J., Laughlin, Clarke and Miller, JJ., concurred. Judgment and order reversed, new trial ordered, costs to appellant ' to abide event.