Isaac A. Hopper's Sons, Inc. v. Gerry Estates, Inc.

Headnote

Lien — contract — action to foreclose mechanic’s lien —■ contract to erect building for cost plus seven and one half per cent — difference as to agreed upset price.

Hopper’s Sons, Inc., v. Gerry Estates, Inc., 222 App. Div. 4 , affirmed.

Appeal from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered December 21, 1927, which reversed a judgment of Special Term entered upon the report of a referee in an action to foreclose a mechanic’s lien and directed judgment in favor of plaintiff upon new findings. The contract pro

vided for the construction of a store and loft building according to certain plans and specifications for which the contracting defendant agreed to pay plaintiff the cost, plus seven and one-half per cent. It was asserted by plaintiff that there was an upset price agreed upon of $136,750. The contracting defendant asserted that the upset price was $106,750. It is about this difference in the amount of the upset price agreed upon that the controversy arose.