Iuppa v. Angert

Headnote

Mechanic’s lien — foreclosure — building contract — alleged omission by inadvertence or mistake.

Iuppa v. Angert, 202 App. Div. 777 , affirmed.

Appeal from a judgment of the Appellate Division of the Supreme Court in the fourth judicial department,

entered May 3, 1922, affirming a judgment in favor of plaintiffs entered upon the report of a referee. The complaint alleged the furnishing of work and material in the erection of a garage for the improvement of real property at Lake avenue and Seneca Parkway in Rochester belonging to defendants Aaron and Samuel Angert, between May 9 and December 1, 1913, to the amount of $3,227.74; that a mechanic’s lien was filed against this property, and demands the usual judgment of foreclosure. The answer was substantially a denial and alleged as an affirmative defense that on May 2, 1913, plaintiffs and defendants entered into an agreement by which plaintiffs agreed to erect an apartment house and garage on defendants’ real property for $13,800, and that through mistake and inadvertence the word “ garage ” was omitted from' the contract although the contract made the plans and specifications including the garage a part of the contract, and that throughout the performance of the work the plaintiffs and defendants construed the contract to include the erection of the garage according to the plans and specifications. Payment and accord and satisfaction were further defenses.