Robert E. Foley Construction Corp. v. New York State Electric & Gas Corp.

Memorandum by the Court.

In connection with its contract for the construction of a transmission line, plaintiff seeks to recover the cost of tension-stringing lines in the course of construction, so as to prevent their contact with rock and other rough and abrasive surfaces; plaintiff alleging an oral request and authorization subsequent to the written contract and defendant contending that tension-stringing was contemplated by the contract although not specified and, additionally, that the alleged modification of the written contract was unauthorized. Special Term held (1) that it was unable, on the papers before it, to determine the latter contention as a matter of law; (2) that whether or not the contract contemplated tension-stringing might depend on custom or usage; and (3) that these and the other issues demonstrated “ can only be properly resolved after a trial.” Order denying defendant’s motion for summary judgment affirmed, with costs. Gibson, P. J., Reynolds, Taylor, Aulisi and Hamm, JJ., concur.