45 N.Y.S. 407 | N.Y. App. Div. | 1897
We held in Ludlum v. Couch (10 App. Div. 603) that if there was any evidence to support the judgment of the justice, no authority existed in the County Court to reverse the judgment as. against the weight of evidence. In the present case the County Court has assumed to pass upon the testimony and reverse the judgment. Unless, therefore, there was an entire absence of evidence in .support of the judgment rendered by the justice, the decision of the County Court cannot be upheld.
The action is brought to foreclose a mechanic’s lien held by the plaintiffs as sub-contractors which arose out of a claim for stone furnished to curb a street. One. Hesse had a contract with the defendant to grade and pave the street in front of his premises, for which he was to receive about the sum of $264. There was. also some other paving for other parties in the same locality for which Hesse also had a contract. He entered into a contract with a son of the defendant to survey the premises which he was to pave, for which he was to pay the sum of $200. When the paving for defendant was completed Hesse was in Europe. His wife held a power of attorney from him, authorizing her to ask, demand, sue for, recover and receive all moneys, demands and accounts due and owing from any persons to the said Hesse. The defendant did not pay the money due for the paving to the wife, but delivered the check therefor to his son, who in turn applied. to Hesse’s foreman in charge of the paving, delivering to him a check for $64 and a receipt for $264. The foreman took this check and
Hesse testified that he had not been paid for the work and that he did not know what his wife had done or that she had given a receipt for money which she did not receive; that the reason why he did not make any claim against the defendant was that he had given a power of attorney to other parties and.the matter wás out of his-hands.He further testified that there 'was no talk with Meserole’s son about paying the $200 for -surveying out of the cost of the paving, or that he was only to receive sixty-four dollars in money On account of it; that his wife told him of tlie receipt and check when he came back from Europe, and that he knew the cheek was for some of the work; but he did not know, at the trial, what the cost of the Meserole work was. After the case was closed it was reopened and.
The' judgment of the County Court should, therefore, be reversed, and that of the justice affirmed.
All concurred.
Judgment of the County Court reversed, and that of the justice, affirmed, with costs.