46 A.D.2d 970 | N.Y. App. Div. | 1974
Appeal from a judgment of the Supreme Court in favor of plaintiff, entered March 4, 1974 in Franklin County, upon a decision of the court at a Trial Term, without a jury. In this action to enforce a mechanic's lien, it appears that plaintiff, S. De Lia Construction Corp., entered into a contract with Whitney Industries, Inc., providing for the purchase of 60,000 cubic yards of gravel from a pit on Whitney’s lands in the Town of Long Lake, Hamilton County, New York for use in a highway construction project, The contract also provided that, with the consent of Whitney, plaintiff could also purchase cubic yardage in excess of 60,000 cubic yards for sale to municipalities and others. The purchase price was 20 cents a cubic yard, and the term of the contract was from August 1, 1969 to December 1, 1970. At the expiration of the contract, there existed four stockpiles of gravel at the pit which had been processed by plaintiff. The plaintiff estimated that pile No. 1 contained about 14,000 cubic yards; pile No. 2 contained about 16,666 cubic yards; pile No. 3 contained about 4,000 cubic yards; and pile No. 4 contained about 3,000 cubic yards. The material in pile No. 4 is not involved in this action. An oral agreement was then entered into between plaintiff