Helwig v. Blumenberg — 28 N.Y. St. Rep. 75

Majority

p. 75

Michael Helwig, Resp’t, v. John H. Blumenberg and Henrietta Blumenberg, App’lts.

(Supreme Court, General Term,, Second Department,

Filed December 9, 1889.)

Headnote

Contract—Excavating—Blasting.

Blasting rock is not so clearly included in the term "excavating” in a

p. 76

building contract as to create a suspicion of the contractor’s good faith' in raising the question and where the parties agree that each shall pay one-half of such blasting, such settlement of the question of interpretation will be sustained.

Appeal from judgment in favor of the plaintiff entered upon a trial by the court without a jury.

Action to foreclose a mechanic’s lien.

Norman A. Lawlor and Charles F. Irwin, for app’lts; Wetter S. Allerton, for resp’t.

The principal question made on the appeal is as to the charge of $183 for blasting.

• The written contract was to the effect that plaintiff should do “ all the excavating, grading,” etc., for the sum of $674.

The defendant claims that the blasting is included in the written contract under the term “ excavating ” and that no extra charge can be made therefor.

The proof is to the effect that when the existence of a large mass of rock was disclosed this question arose between the parties. It was then agreed that plaintiff should blast the rock and the. expense thereof should be borne equally by the parties. The charge of $183 is one-half of the cost paid out by plaintiff for wages of men in blasting.

We do not think that blasting rock is so clearly included in the term “ excavating ” as to raise any suspicion of plaintiff’s good faith when at or near the beginning of his work he insisted on his interpretation of the contract.

The question of interpretation was a fair one and seems to have been settled by the parties at the time in a fair way. That settlement was properly sustained by the court below when plaintiff was allowed judgment for one-half the expense of blasting.

The objection is made that the judgment requires the interest of Henrietta Blumenberg in the premises to be sold to satisfy plaintiff’s lien, when it does not appear that she was a party to the contract for the building of the house, or in any way made herself liable for the expenditure.

It is to be observed that neither when the motion to dismiss was made, nor at any time during the trial, was the attention of the court called to this point. Proof of her knowledge and approbation of the work would have been sufficient to subject her interest in the land to the operation of the lien.

The case does not show that all the testimony given upon the trial is before us. It may well be that such knowledge and approbaton were shown.

Judgment affirmed, with costs.

Barnard, P. J., and Dykman, J., concur.