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Harvey v. State

Supreme Court of New York, Appellate Division

November 16, 1951

JOHN J. HARVEY et al., Surviving Partners Doing Business under the Name of JOHN J. HARVEY COMPANY, Appellants-Respondents,
v.
STATE OF NEW YORK, Respondent-Appellant. Claim No. 30277.

Cross appeals (1) by claimants from so much of a judgment, entered January 25, 1951, upon a decision of the Court of Claims, as declared that said claimants were estopped from recovering a specified sum under contract No. 8647, and (2) by defendant from so much of said judgment as awarded claimants a specified sum under contract No. 8491.

Judgment affirmed, without costs of this appeal to any party.

MCCURN, J. (dissenting).

The State has withheld payment to the contractor of the sum of $9,583.32 to offset unemployment insurance tax credits which became available to the contractor and his subcontractors under the provisions of section 577 of the Labor Law. These credits were not determined until

Page 709

some time after the contract was completed and became of benefit to the contractor and his subcontractors to reduce their unemployment insurance tax on any payrolls during the four successive calendar quarters thereafter. The Court of Claims properly held that such credits did not reduce the cost of the contract in question. A recovery of the amount of the tax credits upon payrolls under contract No. 8647 which the State withheld was denied, however, on the theory that a certain agreement (Exhibit 6-A) signed by the contractor and delivered to the State after the completion of the contract precluded such a recovery.

Exhibit 6-A reads as follows:

'RELEASE BY PRIME CONTRACTOR TO NEW YORK STATE

'Received from the State of New York the sum of Fourteen Thousand Seven Hundred Thirteen--78/100 being the final payment due John J. Harvey Company on account of its contract and extras with the State of New York Contract No. 8647 Mohawk College, Utica, New York, dated September 13, 1946. In consideration of this and prior payments, the John J. Harvey Company releases and forever discharge the said State of New York from any and all liability on account of said contract and extras.

Rodney Hamelin--partner

(Signature and Title)

'It is further agreed that the John J. Harvey Company will turn over to the State of New York any and all credits, refunds and discounts taken advantage of and received by the John J. Harvey Company from the State Division of Placement and Unemployment Insurance pursuant to Section 577 of the Labor Law and monies received by way of dividends, credits or refunds received from insurance companies.

'The amount to be turned over to the State of New York on account of credits received from the State Division of Placement and Unemployment Insurance will equal the percentage of the total credit received which the wages reimbursed by the State of New York under the contract bear to the total wages paid by the John J. Harvey Company during each year upon which credit is based.

'All such amounts to be turned over on account of credits, refunds and discounts shall be turned over within thirty days after they are received or taken advantage of.

'In Witness Whereof, the said John J. Harvey Company has hereunto set its hand and seal signed by its Partner this 1 day of December in the Year One ...


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