Majority
p. 916JEANS et al. v. BOLTON et al. (Superior Court of New York City, General Term. July 3, 1893.) The opinion of the referee is as follows:
Headnote
Evidence—Weight.In an action for work done by plaintiffs on defendant’s house, it appeared that defendant had contracted with one S. to do certain work on the premises at an agreed price, and that S. subcontracted with plaintiffs. On completion of the contract, extra work was required to be-done, and plaintiffs did it at S.’s request. S. testified that defendant requested him to employ carpenters to do the extra work, but defendant denied this, and testified that his contract was solely .with S. At a certain time, S. told plaintiffs not to press their claim, as -defendant was short, and about the same time collected all that was due him. Held, that a finding that plaintiffs were S.’s subcontractors in doing such extra work was-proper. .
Appeal from judgment ou report of referee.
Action by Edward Jeans and another against Samuel Bolton and others to recover for materials furnished for and work done at certain premises in the city of New York. From a judgment in favor of defendants, plaintiffs appeal.
Affirmed.
“This action is brought to recover for goods alleged to have been sold to,, and work alleged to have been performed for, the defendants, at the premises S. W. corner Sixth avenue and 22d street, in the city of New York, by the plaintiffs, who are builders. The evidence before me discloses the fact that one Elisha Sniffin, an architect, contracted with the defendant Samuel Bolton to supply certain materials and perform certain work in and about the premises referred to, at an. agreed price; that the said Sniffin furnished the materials and performed the work pursuant to said contract, and employed or contracted with the plaintiffs to do part of the same; and that plaintiffs were paid therefor by Sniffin’s personal checks. Upon the completion of the contracts above referred to, it appears there was certain extra work required to be done, and Sniffin claims that Bolton - requested him to-employ carpenters to do this extra work. It appears that the plaintiffs entered upon the performance of this extra work at the request of Sniffin. The-defendant Samuel Bolton emphatically denies the statements of Sniffin, and testifies that his contract was with Sniffin solely, and that he never knew or heard of the plaintiffs until their bill was presented, and that he paid this-bill, or some part of it, at Sniffin’s request. From the evidence I am not led to place any confidence in Mr. Sniffin’s statement. From the testimony of Mr. Taylor it appears that in the fall of 1890 he told the plaintiffs not to press their claim, as Bolton was short; and the bill was not submitted until December, 1890. Sniffin had been careful, however, to collect his money in full' in October, as appears by his receipt of October 8, 1890. He was evidently anxious to get his money, and, after receiving it, to leave the.defendants to a lawsuit at the hands of his subcontractors, the plaintiffs. In view of this consideration, and the fact that the testimony of Sniffin has not been corroborated, and is flatly contradicted by Bolton, it cannot be said that the plaintiffs have maintained the issue by a preponderance of evidence; and this the plaintiffs must do, especially in view of the relations formerly existing between them and Sniffin and the defendants and Sniffin. I think the evidence clearly establishes that the plaintiffs were subcontractors of Sniffin. Having reached this conclusion, I have thought it unnecessary to pass upon the ques
p. 917tians as to the reasonable value of the work done and materials furnished, and as to the liability of the defendant Mary Bolton, which latter question was raised by the defendants’ counsel. The complaint should be dismissed, with costs.” Argued before FREEDMAN and GILDERSLEEVE, JJ.
John H. Hull, for appellants.
W. B. Ellison, for respondents.
The judgment should be affirmed, with costs, ■upon the opinion of the referee.