Opinion
October 31, 1973
Appeal from the Herkimer Trial Term.
Present — Del Vecchio, J.P., Marsh, Cardamone, Simons and Henry, JJ.
Judgment insofar as it dismisses the complaint against defendant C. Scialdo Sons, Inc., unanimously reversed on the law and facts and judgment granted to plaintiff against said defendant in the amount of $8,040.75, with costs and disbursements, and otherwise judgment affirmed. Memorandum: While the cause of action against the individual defendants was properly dismissed for failure of proof, it appears from the record that plaintiff sustained the burden of proving the existence of the contracts upon which it seeks a recovery as well as performance under such contracts against the defendant corporation. The testimony of plaintiff's supervisor who was in charge of and personally supervised the work contracted for was competent to establish performance and the trial court improperly ruled this testimony inadmissible. Upon all the proof, taken by the court upon the trial without a jury, we find the contract price for the two projects undertaken and performed by the plaintiff to be $78,965, upon which there has been paid $60,971, leaving a balance due of $17,994. As a credit against such balance defendant is entitled to $2,800 for insulation work not performed and $7,153.25 for repairs made necessary by reason of defective performance by plaintiff. Giving effect to such credits the net balance due plaintiff is the sum of $8,040.75.