
    Lewinson v. Reich.
    (City Court of New York—General Term,
    November, 1893.)
    In an action to recover an installment claimed to be due on contract for the erection of certain fire escapes upon the property of defendant in a good, workmanlike and substantial manner, the answer was a denial and a counterclaim for damages by reason of the unskillful manner in which the work was performed. The court, on motion at the close of the-testimony, directed a verdict for plaintiff. Held, error; that as there was a dispute as to whether plaintiffs performed all the work required under the contract before they were entitled to the payment demanded, that, question should have been submitted to the jury,
    Appeal from a judgment entered on the verdict of a jury by direction of the court. The opinion states the facts.
    
      William R. Keese, for plaintiff's (respondents).
    
      Vanderpoel, Cumming & Goodwin, for defendant (appellant).
   Newburger, J.

This action was brought to recover fPom defendant an installment claimed to be due on a contract between the parties to this action, wherein the plaintiffs contracted to erect certain -fire escapes upon property of defendant in a good, workmanlike and substantial manner, to the-satisfaction and under the direction of the building department of the city of Rew York.

The installments were to be paid at different stages of the work. The answer of the defendant denied all of the material allegations of the complaint, and set up a counterclaim for damáges by reason of the unskillful manner in which the work was done by plaintiffs. At the close of the testimony the plaintiff moved for a direction, which was granted. The trial justice erred. There was a dispute as to whether the plaintiffs performed all the work required under the contract before they were entitled to the payment demanded, and that question should have been submitted to the jury for their determination.

For these reasons the judgment must he reversed, a new trial granted, with costs to abide the event.

Van Wyoic and McCarthy, JJ., concur.

Judgment reversed, new trial granted, costs to abide event.  