142 Misc. 139 | City of New York Municipal Court | 1931
This is a trial of an action in foreclosure of three mechanics’ hens filed by the three plaintiffs.
(2) The motion to dismiss the hen and the complaint of plaintiff John Bichler for the claim stated therein in the sum of $1,050 must be granted upon the evidence of Bichler himself that by assignment still in full force and effect at the time of the trial he had set over his claim to a third person who had marle a settlement in full thereof with the owner.
(3) The two remaining plaintiffs prove claims under their liens as subcontractors in the total sum of $848.54. The general contractor, although testifying by its president as a witness in behalf of plaintiffs that there is still due to it the sum of $1,160 in the hands of the owner, filed no lien and commenced no action. Plaintiffs concede that they cannot recover unless it be proven that the owner holds, as still due to the general contractor, a sum sufficient to cover their claims, since they do not allege any promise by or agreement with the owner. Defendant owner counterclaims in the sum of $917, consisting of $792 claimed as and for equitable allowances (Jacob & Youngs v. Kent, 230 N. Y. 243) and $1,025 for defective work which had to be corrected, in all $1,817, from which is to be deducted $900, claimed to have been due and unpaid under the original contract.
(4) Taking up first the claim of defective work, there seems to be no material dispute as to the facts. The general contractor agreed to build an extension and to lay a proper foundation which was duly described by dimensions and footings in the blueprints and the plans. Some sixty days, more or less, after the work was finished, cracks appeared in the walls of the extension. Later the walls evidently began to buckle and the extension began to pull away from the main structure, apparently threatening a collapse. The condition was progressive, so that when two years later an
(5) Various items in the sum claimed in the aggregate for allowances are shown to be excessive, and this claim is, therefore, reduced from $792 to $525, for which a counterclaim against the general contractor is allowed. The defendant owner is, therefore, allowed judgment on his counterclaim in the sum of $1,550. From this must be deducted the amount unpaid on the contract of $900 and $100 for extra work approved by the architect, altogether $1,000. The defendant owner, therefore, shall have a personal judgment against the general contractor in the sum of $550, the complaint is dismissed and all the hens are ordered vacated. Submit findings of fact and conclusions of law in accordance herewith.