J. A. Mahlstedt Lumber & Coal Co. v. K. T. K. Holding Corp.

Majority

p. 785

The J. A. Mahlstedt Lumber and Coal Company, Appellant, Respondent, v. K. T. K. Holding Corporation, Respondent, Appellant, Impleaded with National Surety Company, Respondent, and Pinto & La Sala, Inc., Defendant. (Consolidated Appeals.)

Judgment in so far as appealed from reversed on the law and the facts, with costs, and judgment directed for the plaintiff as demanded in the complaint for the amount of $16,444.79, with interest from the 15th day of August, 1929, with costs. Appeal by defendant K. T. K. Holding Corporation from the order denying its motion for costs and extra allowance dismissed, without costs. The findings that the subcontractor, Pinto & La Sala, Inc., was overpaid at the time plaintiffs lien was filed are not supported by the evidence. Such findings and the corresponding conclusions of law are reversed and new findings and appropriate conclusions of law will be made. Upon the evidence defendant K. T. K. Holding Corporation was indebted to the subcontractor, Pinto & La Sala, Inc., in excess of the amount of plaintiffs lien and the plaintiff is entitled to judgment as demanded in the complaint. Young, Kapper, Hagarty, Carswell and Tompkins, JJ., concur. Settle order on notice.