Majority
p. 135(48 Misc. Rep. 636.) MESEROLE v. ZIMMERMAN. (Supreme Court, Appellate Term. November 24, 1905.) Argued before SCOTT, P. J., and GILDERSLEEVE and Mac-LEAN, JJ.
Headnote
Bills and Notes—Orders—Consideration—Sufficiency.In an action by a materialman against the contractor to recover moneys due a subcontractor, consideration for the order on the contractor, on which tiie action was based, was shown by evidence of materials furnished by the plaintiff to the houses in the construction of which the defendant was engaged as contractor.
Appeal from City Court of New York.
Action by William H. Meserole against Jacob A. Zimmerman. From a judgment in favor of plaintiff, defendant appeals.
Affirmed.
Rose & Putzel, for appellant.
J. P. Donellan, for respondent.
In this action by plaintiff as a material man against the defendant as a contractor to recover moneys due a subcontractor, consideration for the order upon which the action was based was shown by evidence of materials furnished by the plaintiff to the houses in the construction of which the defendant was engaged as contractor, thus distinguishing this from the case of Shaw v. Tonns, 20 App. Div. 39 , 46 N. Y. Supp. 545 . Otherwise, there was only a question of fact to be determined, and the judgment entered upon its determination by the jury upon a charge calling for no criticism by this court may stand.
Judgment affirmed, with costs.
Cases cited
- Shaw v. Tonns 20 App. Div. 39 at 46 p. 135