Rogers v. McGuire — 32 N.Y. St. Rep. 1104

Majority

p. 1104

George A. Rogers, Resp’t, v. William McGuire et al., App’lts.

(Supreme Court, General Term, Second Department

Filed July 18, 1890.)

Headnote

Mechanic’s lien — Building contract.

The second payment, on a contract was to be made when cornice was set, siding on and floors laid. The architect gave his certificate that the work was done, but defendant refused payment and the contractor stopped work. A portion of the siding was not on, but this could have been better done at a later stage. Defendant at first did not object, but promised payment. Held, that the court properly found that»the second payment, was due and payable.

Appeal from judgment in favor of plaintiff in action to foreclose a mechanic’s lien.

Norman A. Lawlor, for app’lts; L. C. &W. P. Platt, for resp’t., Daniel Haight and P. L. McClellan, for lienors.

The principal question in this case was one of fact. The plaintiff is a builder and the defendant McGuire owned a lot of land upon which the plaintiff agreed to erect a. building for an agreed price. The first payment of $1,500 was paid. The second payment of $2,000 was due “when cornice is set, siding on and floors laid.” Proof was given tending to show that the payment was due and payable; that the work called for was done and the certificate of the architect delivered; that a portion of the siding was not on, but this could be done better at a later stage of the work, and that a full performance in this respect was waived. Notwithstanding this, the owner refused to pay the instalment and the contractors stopped work. The-architect testified that the siding omitted was small places between the stone front, and that the stone front was to be put up first. This was included in the third payment The owner at first made no objection to the omission, but promised payment of the second instalment. The trial court could not, therefore, find otherwise than that the second payment was due and payable. The plaintiff proved extra work beyond this to support the finding of the court that there was due at the time of the breach of the contract the sum of $2,500, with interest thereon from 27th April, 1887. Whether the building was larger than the specifica

p. 1105

tian called for, and what it would cost to furnish it, and whether the work was well done or not upon it, were questions which "became subjects of contradictory proof. The proof supports the finding upon the questions, so far as the same are involved in the case.

The judgment should, therefore, be affirmed, with costs.

Dykmakt and Pratt, JJ., concur.