Kuhs v. Flower City Tissue Mills Co.

Headnote

Building contract — alleged breach in that character of earth to be excavated differed from description in specifications.

Kuhs v. Flower City Tissue Mills Co., 190 App. Div. 928 , affirmed.

Appeal from a judgment, of the Appellate Division of the Supreme Court in the fourth judicial department, entered January 27, 1920, modifying and affirming as modified á judgment entered upon a decision of the court on trial at Special Term dismissing plaintiff's second cause of action. The action was to foreclose a mechanic’s hen. The complaint alleged two causes of action, one for a balance unpaid on a contract for the erection of a mill and the second for breach of the same contract in that it was represented that the excavation

required would be of earth and gravel while as a fact plaintiff did not find sufficient gravel on the site to do his work and found the excavations to be largely through hardpan.