Johnson v. Kelton Construction Corp.

| N.Y. App. Div. | Oct 15, 1928

Judgment modified by adjudging that appellant, respondent, Rosiello acquired a good, valid and subsisting hen in the sum of $1,670.02, and by directing that said Rosiello have judgment against respondent, appellant, Kelton Construction Corporation and respondent Continental Casualty Company for the sum of $1,670.02, with interest and costs. As so modified, the judgment is unanimously affirmed, with costs to appellant, respondent, Rosiello as against Kelton Construction Corporation and Continental Casualty Company. The weight of the credible evidence is that the lien was filed in time and that no part of the proceeds of the cheek dated April 23, 1924, defendants’ Exhibit E, was applied to the payment of work done under the contract in suit. Findings of fact and conclusions of law inconsistent herewith are reversed and new findings and appropriate conclusions will be made. Present — Lazansky, P. J., Kapper, Hagarty, Carswell and Seudder, JJ. Settle order on notice.