Amanna v. Carvel

Headnote

Amanna v. Carvel, 167 App. Div. 557 , affirmed.

Appeal from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered April 28, 1915, modifying and affirming as modified a judgment in favor of plaintiff entered upon a decision of the court on trial at Special Term in an action to foreclose a mechanic’s lien. Defendant Carvel, who had a contract with the city of New York for the construction of a school building in the borough of Brooklyn, entered into two sub-contracts with plaintiff by the terms of which the latter agreed to do all of the excavating work, rubble stone work and furnish all concrete footings required under the specifications. Thereafter plaintiff filed a lien under both contracts and this action was brought to foreclose the same. The defendant surety company executed a bond, upon which the lien was discharged. The Appellate Division modified the findings made by the trial court in three particulars: (1) By reversing the finding that the plaintiff was entitled to recover $1.50 per cubic yard for earth which fell into

the pier holes and pipe tunnels; (2) by allowing the defendant Carvel credit for 1,600 barrels of cement at $1.68 net per barrel, instead of at $1.40 per barrel, and (3) by allowing Carvel $521.43 for plastering 7,449 square feet of wall which the plaintiff, under his contract, was obliged to plaster but did not, making in all a total allowance to the defendant Carvel of $2,453.43, with interest, amounting to $222.05, being $2,675.48 in all, by which sum the judgment herein was reduced.