
    George Schillinger, Appellant, v. William P. McGarry, Respondent.
    (Supreme Court, Appellate Term,
    January, 1899.)
    1. "Verdict — Wb.en it should not be directed.
    Where there is an issue of fact, the court is not authorized to direct a verdict for the defendant unless the testimony he offers is so certain and convincing that no reasonable mind could come to any but one conclusion.
    
      2. Evidence — Testimony not balanced by one witness on each: side.
    The testimony in a case is not necessarily balanced because one witness swears one way and one another way; and ordinarily unless there is some great discrepancy, between the testimony and established facts, which necessarily shows that one or the other witness is mistaken or is nor telling the truth, the question must be decided precisely as though there was more than one witness on each side.
    Appeal by the plaintiff from a judgment of the Municipal Court of the city of Mew York, borough of Manhattan, seventh district, entered in defendant’s favor upon a verdict, directed by the court.
    The pleadings were oral. The nature of the action and the material facts are stated in the opinion.
    David Gordon, for appellant.
    Phillips & Avery (Henry W. Eaton, of counsel), for respondent.
   Giegerich, J.

This action was brought to recover damages claimed to have been sustained in consequence of the defendant’s refusal to allow the plaintiff’s assignors to complete and carry out their part of an agreement in writing, bearing date the 1st day of October, 1897, made under their firm name of George Schillinger & Company, of which firm the plaintiff was a member, on the one part, and the defendant, on the other, by the terms of which they agreed to well and sufficiently finish all the cement and concrete work, viz.: and furnish all the cement and necessary material. Cellars, vaults, areas and sidewalks, and all coal cinder filling, and also, the asphalt work, viz.: The laying of asphalt on first floors and in water-closets, halls and wardrobes, at the new annex to Grammar School No. 2, situate at No. 116 Henry street, in the city of New York.

And that all work mentioned herein shall be done by the said parties of the second part, according to the plans and specifications of * * * , architect, for the sum of $2,290.”

The principal questions contested upon the trial were whether the plaintifi’s assignors were required to lay the coal cinder filling above the first story, and whether the defendant had prevented the former from performing the conditions of the contract on their part. With respect to the first stated proposition the trial justice, in denying the motion to dismiss the complaint made when the plaintiff rested, held, that the plaintiff’s assignors were not obliged to do any coal cinder filling above said last-mentioned part of the building, and, to my mind, such construction is fairly warranted by the contract.

The testimony regarding the other question was conflicting. The plaintiff testified that his assignors began work under the contract on October 23, 1897, and worked at intervals until March 3, 1898; that in'response to defendant’s letter of March 1, 1898, requiring said firm to perform the conditions of the contract on their part, the witness had an interview on March 2, 1898, with the defendant, in the course of which the latter insisted that by the terms of the contract, the said firm was required to lay the coal cinder filling on all the floors of the building. This was disputed by the plaintiff, who maintained that said filling was only to be laid in the cellar, sidewalks, yards and water-closets, whereupon the defendant offered to pay $3,600 if the firm would stipulate to do the work in dispute in addition to that called for by the contract. The plaintiff promised to consult his partners that evening, or on the following morning and advise the defendant through the telephone of the result of the consultation. The next morning he telephoned the defendant that his firm was willing to do the work for $3,800, which offer was rejected, the defendant saying he would do the work himself.

The plaintiff further testified, “ I was ready every time tb finish, only Mr. Me Garry was not ready, so I could finish, because he didn’t have the filling the right height, and in one place he didn’t have the coping there. Q. Did you ever have any conversation with Mr. McGarry after the one in which he said he would do the work himself? A. About fourteen days afterwards I went there again and saw him in Madison street, and I asked him if he was ready for me to start in. He said, 1 I am not ready for you at all; you broke the contract, and ain’t got any right, to do something more.’ I asked him about money, and he said, ‘ You will have to wait for your money until I finish, and if it costs more, I will charge you for that.’ I said, 1 You ain’t a right to do my contract work; we did the work last October and ain’t got a cent; I must pay my men.’ He said, Go to court or somewhere else where you will get it.’ ”

On cross-examination the witness testified that -on March 3, 1898, his firm had three men upon the job doing “ patching work,” and carting the coal cinders from the “ street side ” to the “ Madison street side.” Upon being interrogated by the court, he testified: Q. When did you stop work? A. I didn’t stop; I couldn’t go further; he was not ready. Q. If you couldn’t go further, you stopped? A. I was. there; I couldn’t go further, as he was not ready for me; the cellar on Madison street side ■—that was brick and marble mixed, and I couldn’t get in and the coping was not set in the yard. Q. How long did that continue? A. I was there a couple of days afterwards, and he was not ready; I spoke to him and he said I broke the contract, and wouldn’t let me do anything more and said he would do it himself. Q. When was that? A. That was about March 6th or 7th.”

The defendant in his own behalf testified that the plaintiff’s assignors did not, as testified, do any work under the contract in the month of March, but that, on the contrary, the last work performed by them was in the latter part of February, when, according to the witness, there was “ plenty of work ready for him to do; ” that the plaintiff’s firm did not render any services after the defendant wrote the letter of March 1st; nor did he at any time prevent it from going on with the work; that in the latter part of February, the defendant asked the plaintiff to proceed and do all the concreting cinder work, and that one Gibbs was present at “ one conversation ” which in detail is as follows: Q. State the conversation with Mr. Schillinger and Mr. Gibbs. A. I saw Mr. Schillinger nearly every morning and I met him at the school with Mr. Gibbs, and we went into the office and talked the matter over; the inspector was there and I said the specifications call for it, and I said 1 Go ahead/ and he said, I can’t afford to do it; it costs so much money.’ I wanted the work done, and ■said, ‘ How much will it cost? ’ He said $1,400/ or ‘ $1,500.’ We talked about $1,000, and I said to Gibbs, ‘ Will you pay one-half and I will pay one-half? ’ and he said I won’t pay five cents.’ And L said I couldn’t afford to pay it. He said, * I will see my partner to-night and let you know.’ I didn’t hear anything from him. Mr. Gibbs told me to go ahead. Q. Did you have any other ■conversation with Mr. Schillinger? A. No, sir.”

The defendant further testified that in March, 1898, he started ■to complete the work; that it was subsequently completed, and that the work was done by third parties. •

On cross-examination, the defendant further testified: “ Q. Do you remember a conversation with him on the telephone where he told you how much it would cost to do the entire concrete work ■and the arches? A. Not on the telephone; the only conversation I had was in Mr. Gibbs’ presence, and I wanted him to complete his work, as I had a great deal of money standing, and Mr. Gibbs told me if I didn’t do it, he would get somebody else to do it. <5. When Schillinger told you he could not do the arch work and •all the cinder concrete work in the other building, what did you say; did you tell him to go ahead? A. I said, ‘ Your contract calls for it; go ahead and finish; ’ there was talk about the asphalt then; he was to complete the work any way — the whole •of it.”

The said David H. Gibbs was called as a witness by the defendant and testified that he was the contractor of the building in question, and that the defendant was the subcontractor under him; that the plaintiff’s assignors did not do any work upon the building after the month of February, except on the 1st day ■of March, when some cement was taken away; that he was present at a conversation between the defendant and the plaintiff, which the witness detailed as follows: Q. Tell us what was said at that time in reference to completing the work? A. Mr. Mc‘Garry wanted him to go on and complete the work, and I triéd to persuade him to go on and complete it, and it seems Mr. Schillinger said he didn’t figure to do some part of the work, and I advised Mr. McGarry and Schillinger to fix the matter up and go •on with the work, because we were anxious to get it through; Mr. 'Schillinger, I believe, said that he would see his partner in a day •or two, or that night, and the next day would report what they would do; Mr. McGarry claimed he was to do all the concrete work and asphalting on the job.”

After the plaintiff had testified in rebuttal that three of his. firm’s men had worked upon the job on March 3d, the testimony was closed and the defendant moved for a direction of a verdict in his favor. The plaintiff, on the other hand, 'asked to go to the jury upon the question of fact involved in the case.

The court below in granting the former’s application said: The burden of proof is cast upon the plaintiff in this case. He testified that the defendant McGarry .would not permit him to do-the work. Mr. McGarry meets that by testifying he refused to do-the work, and he proves here a demand that he proceed with the work. In addition to that the defendant proves, by the evidence of a person who is not interested in the controversy, and who testified that at the time when a certain conversation took place, there was work there ready to be done, and that the plaintiff would not and did not proceed. Under those circumstances, I must hold whatever breach of contract there was (so far as the evidence-shows), was a breach brought about by the action of the plaintiff, which precludes him from recovering in this action. You will find, in accordance with that direction, for the defendant.”

The plaintiff noted an exception and this brings up for determination the crucial question whether such direction was justified.

Justification of such a course is only warranted when the facts are undisputed or so certain and convincing that no reasonable mind could come to any but one conclusion. Esmond v. Seeley, 28 App. Div. 296, 300; citing Bagley v. Bowe, 105 N. Y. 171; Linkhauf v. Lombard, 137 id. 417; Hemmens v. Nelson on, 138 id. 517; see Luhrs v. Brooklyn Heights R. R. Co., 13 App. Div. 126; Illston v. Evans, 27 id. 447.

As was said in Bagley v. Bowe, supra (p. 179): If there is ground for opposite inferences, and a conclusion either way would not shock the sense of a reasonable man, then the case is for the jury, although the judge may entertain a clear and decided conviction that the truth is on this or that side of the controversy.”

Applying these principles to the present case, it is clear that the court below was not authorized to direct a verdict, but should have submitted the case to the jury. The testimony offered in the defendant’s behalf was not, in my opinion, “ so certain and convincing that no reasonable mind could come to any but one ■conclusion.” On the contrary, interpreting the evidence in the most favorable light to the plaintiff, to which interpretation he is entitled by reason of the aforesaid disposition of the case, there is, to my mind, ample ground for “ opposite inferences.” The testimony of the plaintiff tended to show that upon at least two occasions in March, 1898, the defendant refused to permit him to proceed with the work. Yet the latter denied having had any interview with him during that month, and claimed to have had one in the latter part of February, the substance of which has been stated.

Great stress has been laid by the defendant upon the testimony of Gibbs, hut, as seen, the same related only to the conversation claimed to have been had at the time last mentioned, and hence the defendant’s testimony, except in this particular instance, was not corroborated. The mere fact that the alleged refusal of the defendant to allow the plaintiff’s assignors to perform during the month of March depended entirely upon plaintiff’s testimony, and which was contradicted by the defendant, did not authorize a direction in favor of the latter.

“ The testimony is not necessarily balanced,” observed Rumsey, J., who wrote in Felbel v. Kahn, 29 App. Div. 270, 272, u because one witness swears one way and one another, but ordinarily, unless there is some great discrepancy between the testimony and established facts which necessarily shows that one or the other witness is mistaken, or is not telling the truth, the question must he determined precisely as though there were more than one witness on each side.”

Apart from this, the alleged conversation related entirely to but one out of possibly a number of conversations, which may have been had between the parties upon the subject, and as the one testified to related largely if not entirely to the coal cinder filling, the same can have no great force in view of the fact that the plaintiff’s assignors were not, by the terms of the contract, obliged to do any above the first story. Moreover, it appears from Gibbs’ testimony that he advised the plaintiff to consult his partners regarding the matters in difference and report at an early day, and thus, according to his testimony, there was not a refusal to proceed with the work, as the trial justice erroneously assumed.

It logically results from these views that the trial justice erred in directing the said verdict, and the judgment entered thereon must, therefore, be reversed and a new trial ordered, with costs to the appellant to abide the event.

Beekman, P. J., and Gildersleeve, J., concur.

Judgment reversed and new trial ordered, with costs to appellant to abide event.  