Gillen v. Babcock — 39 N.Y. St. Rep. 26

Majority

p. 26

James F. Gillen, Resp’t, v. Hamlin Babcock, App’lt.

(Supreme Court, General Term, Second Department,

Filed May 11, 1891.)

Headnote

Question op pact.

Defendant and two others employed plaintiff to grade and pave certain streets and agreed to pay their pro rata of the cost when the work was completed and accepted by the department of city works. This was done, and defendant, not paying his share, a mechanics’ lien was filed by plaintiff against defendant’s property,and this action was brought to foreclose the lien. Proof was given that the work was done under direction of the city engineer and in accordance with the usage of the department. Held, that the question of fact was properly disposed of at the trial.

Robert L. Harrison, for app’lt; J. Stewart Ross, for resp’t.

—The plaintiff, under two several contracts with the defendant and others, furnished material and paved, graded and guttered a section of Himrod and Stanhope streets, in the city of Brooklyn. The amounts of each of the persons who had the work done was served by the agreements. The plaintiff sought to enforce a lien as against the Babcock property, but failed to prove title on the trial and the relief by enforcement of lien was denied. The case then became one of contract, under chap. 342, Laws of 1885, § 15, and the question tried was, whether the plaintiff had performed the same. The contracts were to be executed by the plaintiff under plans and specifications of the department of city works. The work under each of the contracts was accepted as completely performed by the plaintiff. Some question was made as to the gutter stones being of less ■ than the contract length, also, that the paving was done with small, inferior stones. Proof was given that the work was done under direction of the city engineer; that there were short gutter stones

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used at the corners, of necessity ; that the work was doné in accordance with the usage of the city works department, and that it was well and sufficiently done. The question of fact was properly disposed of at the trial.

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

Dykman and Pratt, JJ., concur.