Murray & Hill Co. v. Boreas Realty Co.

Headnote

Murray & Sill Co. v. Boreas Realty Co., 156 App. Div. 896 , affirmed.

Appeal from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered April 10, 1913, affirming a judgment in favor of plaintiff and defendants, respondents, entered upon a decision of the court on trial at Special Term in an action to foreclose a mechanic’s lien. The judgment in favor of the respondents was rendered upon the theory that the owner, after the contract had been abandoned, completed the contract for the benefit of the .contractor, and that the sum for which judgment was rendered was the balance of the contract price which remained in the

hands of the owner after deducting the sum paid by the owner to the contractor and after deducting certain of the expenses of completion allowed by the court. The appellants contend on this appeal: First, that the trial court erred in refusing to admit testimony of the loss sustained by the owner by reason of the abandonment of the contract by the contractor, and that the answer of the owner entitled it to prove its items of damage; second, that the owner’s motion to amend its answer, which motion was made practically upon the suggestion of the trial court, should have been granted; third, that the trial court adopted an erroneous theory on the trial of the action and erred in permitting the respondents to offer testimony of the probable cost of completing said contract, instead of requiring them to prove what amount, if any, was due from the owner to the contractor, and fourth, that the owner did not complete the contract for the benefit of the contractor.