Asphalt Paving & Contracting Co. v. City of New York

The judgment and order appealed from will be affirmed, with costs, upon the grounds stated in the opinion in action No. 2, between the same parties (149 App. Div. 622), and upon the further ground that under the amended pleadings in this action defendant claimed that it had given notice to make the repairs in question to the Barber Asphalt Company as assignee of the Warren-Scharf Asphalt Paving Company. It was the defendant’s contention that the Barber Company was acting as such assignee, but it utterly failed to sustain its contention by proof, and the verdict was, therefore, properly directed.

*633The judgment and order appealed from are, therefore, affirmed, with costs to respondent.

Ingraham, P. J., McLaughlin and Miller, JJ., concurred.

If the city had proceeded with the trial in this action under its original answer, in which it was alleged that the contractor had been duly notified under the contract to make repairs, it would have been entitled to go to the jury on the theory which was adopted in the action by the same plaintiff against the city, known as No. 2, in which a verdict was rendered for the city; but counsel for the city upon the trial applied for and obtained leave to amend the answer by omitting the allegation that the contractor was duly notified and substituting in place thereof an allegation that its assignee was duly notified to make repairs. Under the answer as thus amended it was incumbent on the defendant to show that the Barber Asphalt Paving Company was the assignee of the contractor, and in this it failed. The court, therefore, properly directed a verdict in favor of the plaintiff for the amount owing to the contractor.

Judgment and order affirmed, with costs.