Sisters of Divine Compassion v. John J. McMahon, Inc. , 243 A.D. 719 ( 1935 )

Motion for reargument granted. Present — Lazansky, P. J.,

Young, Carswell, Scudder and Johnston, JJ. On reargument the decision of this court handed down on January 11,1935 [ante, p. 611], is amended to read as follows: Action against defendant John J. McMahon, Inc., to recover for damage sustained by plaintiff by reason of its failure to construct in a good and workmanlike manner a building that it agreed to erect for plaintiff under a written contract; and also against United States Guarantee Company, the surety on the bond of John J. McMahon, Inc. Judgment against both defendants. Separate appeals from judgment. Judgment reversed on the law and a new trial granted, costs to appellants to abide the event. The trial court directed an assessment of damages on the theory that the guaranty to make the walls watertight was absolute and unqualified. This court reads the guaranty differently and holds it required the contractor to make the walls watertight, if that could be done under the plans and specifications and duly authorized amendments thereof. The language of the contract with reference to the guaranty creates no liability in excess of that stated in McKnight Flintic Stone Co. v. Mayor (160 N. Y. 72). The written order of the architect to erect the walls as per sample made by the contractor was compliance with the terms of the contract in that connection, nothing to the contrary appearing. There should be a trial on the merits. Lazansky, P. J., Scudder, Tompkins and Davis, JJ., concur; Young, J., dissents and votes to affirm.