
    Charles Leopold, Respondent, v. The City of New York, Appellant.
    
      Contract — New York city — action to recover balance alleged to be due for building sewer.
    
    
      Leopold v. City of New York, 184 App. Div. 244, affirmed.
    (Argued May 4, 1920;
    decided June 1, 1920.)
    Appeal from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered August 8, 1918, modifying and affirming as modified so much of a judgment as was in favor of plaintiff entered upon a verdict and reversing so much of said judgment as was in favor of defendant and granting a new trial. The action was to recover a balance alleged to be due for building a sewer in the city of New York. Of the amount claimed $7,830 had been retained by the city as liquidated damages for delay in completion of the work, $1,462.14 had been retained as payment for city water used on the work and $1,709.30 was retained to pay for removing and relaying a certain water main. The trial justice directed a verdict with interest from June, 1913, in favor of plaintiff for the $7,830 deducted for overtime, and for the $1,462.14 for water consumed. He sent to the jury the question of liability relating to the $1,709.30 for failure to remove and relay the water pipe and the jury returned a verdict in favor of defendant. Both sides appealed, defendant against the entire judgment, plaintiff against so much of the judgment as failed to award it interest on the $7-,"830 and the $1,462.14 from May, 1908, and as failed to award it the $1,709.30. The Appellate Division modified the judgment by affirming the finding that plaintiff was entitled to the $7,830 and the $1,462.14, but added interest during a certain period which the trial justice had not allowed, and reversed that part of the judgment based upon the jury’s verdict in favor of defendant for the $1,709.30 and ordered a new trial as to it.
    
      William, P. Burr, Corporation Counsel {Jóhri F. O'Brien of counsel), for appellant.
    
      John C. Wait and Howard G. Wilson for respondent.
   Judgment of Appellate Division modifying and affirming judgment of Trial Term affirmed and order granting new trial affirmed and judgment absolute ordered against appellant on the stipulation, with costs; no opinion.

Concur: His cock, Ch. J., Chase, Hogan, Cardozo, McLaughlin, Crane and Elkus, JJ.  