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Contracts Keyed to Fuller
Ogden v. Earl R. Howarth & Sons, Inc.
Citation:
58 Misc. 2d 213, 294 N.Y.S.Facts
The Town of Ogden initiated an action against Earl R. Howarth & Sons, Inc., a contractor, to enforce compliance with subdivision development and construction regulations. Howarth filed a third-party complaint against Timothy Hart, a homeowner in the subdivision, alleging that any non-compliance with regulations was due to Hart’s actions. Hart counterclaimed against Howarth on three grounds: (1) that he was a third-party beneficiary of the contract between Howarth and the town to properly develop the subdivision; (2) that Howarth fraudulently induced him to purchase the home through misrepresentations about quality; and (3) that Howarth breached implied warranties regarding the quality of workmanship and materials in Hart’s home. Howarth moved to dismiss Hart’s counterclaims, arguing that the Moch case barred third-party beneficiary claims and that a merger clause in the sales contract extinguished any warranty claims.
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