Majority
p. 660Bartholomew Quinn et al., Respondents, v. William R. Martin et al., Appellants. (Argued March 19, 1873; decided June term, 1873.)
Headnote
This was an action to foreclose a mechanic’s lien. The lien was filed and the complaint was in the name of both
p. 661
plaintiffs, and was for work done under a contract and for extra work. The answer admitted the performance of certain work under the contract, and that plaintiffs also performed extra work. Upon the trial, plaintiff Wilson testified that his co-plaintiff had no interest in the extra work. The defendants requested the referee to find that the extra work was done by plaintiff Wilson, and that Quinn had no interest therein. The referee refused' so to find. Meld, no error; that as no issue was presented by the pleadings upon that subject, and as the plaintiffs were bound by their allegations, and both were estopped by the recovery from thereafter setting up any separate claim, the defendants were in no wise harmed. The fact upon which a finding was asked was immaterial.
Simeon E. Church for the appellants.
Edward Daly for the respondents.
Mem. per Curiam, for affirmance, on opinion of Tappan, J., at General Term.
All concur.
Judgment affirmed.