113 N.Y.S. 832 | N.Y. Sup. Ct. | 1908
On or about the 19th clay of September, 1906, the defendants Robinson and Resht, jointly interested in the building of two houses on Washington avenue in the city of New York, entered into a written agreement with the plaintiff, a dealer in lumber, for the supplying to them of all the timber and lumber of certain mentioned kinds and sizes that might he required in the construction of said houses, at fixed rates per thousand feet for the particular kinds and sizes actually delivered. Payments were to be made at certain stages of the work of construction, to the extent of sixty per cent, of the prices agreed upon, the balance of forty per cent, to be paid upon completion of contract. It was also provided that in case the plaintiff “ should wish a note at any time for the forty per cent, remaining, the parties of the second part (Robinson and Resht) hereby agree to give same signed by them individually.” On or about February 9, 1907, the defendant Robinson executed his promissory note for three months indorsed by the defendant Resht for the sum of $1,774.27, being forty per cent, of the value of the materials up to the date of the note delivered by plaintiff under the contract. At about the time of the execution of the note plaintiff was advised by the said defendants that their partnership in the building enterprise in question had been dissolved; that the defendant Resht had no further interest therein and would not be responsible for any lumber to be thereafter delivered. It was also asserted that the defendant Robinson alone would continue the work of construction. Plaintiff thereupon refused to deliver to Robinson any lumber on Robinson’s personal responsibility excepting a certain small quantity to the extent of $138.42, which was required for immediate use, pending arrangements to be made by Robinson to procure lumber elsewhere. The last item of lumber for which plaintiff was to hold Robinson alone answerable was delivered on March 12, 1907, and the last delivery of lumber before plaintiff was informed that Resht would not pay for any future deliveries was on the"31st day of January, 1907. On May 10, 1907, the plaintiff filed his notice of lien for $1,912.69, the aggregate of $1,774.27, the balance concededly owing
Judgment for plaintiff as prayed for.