Day v. Eisele

76 A.D. 304 | N.Y. App. Div. | 1902

Per Curiam:

This is a suit to foreclose a mechanic’s lien. The plaintiff entered into a contract to furnish materials and perform the labor necessary for the construction of a residence and stable for the appellant. The work had gone on about a month when the appellant undertook to stop it by the service of a notice terminating the contract on the ground that the plaintiff had not proceeded with proper diligence. The plaintiff refused to recognize the right of the appellant to do this, and went on until he was forcibly prevented by the appellant from further continuing the performance of the agreement.

In the present suit the contractor has sought and obtained relief upon the theory that the appellant unwarrantably excluded him from the premises and prevented him from completing the contract although he was not at fault but had prosecuted the work with due diligence up to the time of his exclusion. There is ample evidence in the record to sustain this view, and it entitled the plaintiff to recover upon a quantum meruit for the work actually done by him. (Clark v. Mayor, 4 N. Y. 338; Simmons v. Ocean Causeway, 21 App. Div. 30.)

We have examined the numerous exceptions to which our attention is called by the brief in behalf of the appellant, but fail to find any one which points out an error that would justify a reversal.

The judgment should be affirmed.

All concurred.

Judgment affirmed, with costs.