Majority
Judgment affirmed, with costs.
This is an appeal from a judgment entered upon the report of a referee to hear and determine. The action was brought to foreclose a mechanic’s lien for $1,250.60. The defense was a failure to perform the contract made by the plaintiff and a counterclaim. The referee reported against the plaintiff upon its principal claim for material, and in its favor for extras, four dollars and three cents, and the appeal is by the plaintiff. The questions involved were questions of fact, and the cause was fully tried and carefully examined by the referee. He wrote an opinion in which he carefully analysed the testimony and gave abundant reasons for his decision. A further examination of the evidence by us would subserve no profitable purpose, as we concur in the views of the referee and with his opinion. The appellant raises a question respecting the allowance of costs, but we think the plaintiff sustained a substantial defeat upon the merits, and there is no sufficient reason why it should not pay the costs of the litigation it so precipitated without a just claim. The judgment should he affirmed, with costs.
Barnard, R J., and Pratt, J., concurred.