Kapilow Construction Corp. v. Prince , 52 A.D.2d 620 ( 1976 )

In an action inter alia to recover damages for breach of a contract to reconstruct fire damaged premises, the appeal is from a judgment of the Supreme Court, Nassau County, entered June 24, 1975, which is in favor of the plaintiff and the third-party defendant, after a jury trial. (A cross appeal by plaintiff from so much of the judgment as is not in its favor on its second cause of action has been withdrawn.) Judgment affirmed, without costs or disbursements. In our view there was no ambiguity in the contract; the trial court properly took from the jury the question as to the amount plaintiff was entitled to receive for work which it performed under the contract. We further conclude that the third-party complaint should have been dismissed as a matter of law as there was a complete failure of proof that Mr. Lettiere had actual or apparent authority to write a letter binding his employer to indemnify appellant Prince for any claims against it arising out of the restoration work. In view, however, of the jury verdict in favor of the third-party defendant, the judgment on appeal need not be altered. Other questions raised on appeal were resolved by the jury against appellant Prince and its verdict is supported by the record. Cohalan, Acting P. J., Margett, Damiani, Rabin and Titone, JJ., concur.