
    The City of New York, Appellant, v. Continental Asphalt Paving Company et al., Respondents.
    
      City of New York v. Continental Asphalt P. Co, 163 App. Div. 486, affirmed.
    (Argued May 11, 1916;
    decided May 30, 1916.)
    Appeal from a judgment, entered August 3, 1914, upon an order of the Appellate Division of the Supreme Court in the first judicial department, reversing a judgment in favor of plaintiff entered upon a verdict directed by the court and directing a dismissal of the complaint in an action to recover damages for failure on the part of defendants during the year 1909 to comply with notices directing them to make repairs to an asphalt pavement which they were required to maintain for five years after completion of a paving contract. Defendants answered that on October 1, 1903, there remained to be performed only a small portion of the work, which the contractor was unable to perform owing to the wrongful acts of the city in failing to give to the contractor possession of the entire site of the work, and which was necessary to completely perform the same, and that from October 1, 1903, to January, 1909, a.period of more than five years after the substantial completion of the contract,' the contractor was compelled to and did maintain said' pavement in repair.
    
      Lamar Hardy, Corporation Counsel (Terence Farley and E. Crosby Kindleberger of counsel), for appellant.
    
      L. Laflin Kellogg and Alfred C. Pette for respondents.
   Judgment affirmed, with costs; no opinion.

Concur: Willard Bartlett, Ch. J., Hiscocic, Collin, Cuddeback, Hogan, Seabury and Pound, JJ.  