238 A.D. 847 | N.Y. App. Div. | 1933
Judgment as amended reversed on the law and the facts and a new trial granted, costs to appellants to abide the event. It was error to exclude the checks that were marked for identification. They were material in their bearing upon the likelihood of the claim of the plaintiffs that appellants made the promise upon which the plaintiffs rely for a recovery. The lien itself must be considered as bearing upon the unlikelihood of the alleged promise. It nowhere indicates any employer excepting the original contractor with whom the plaintiffs had their subcontract, nor does it indicate any person other than that original contractor to whom the materials were furnished. While the lien may not be defective because of these facts, nevertheless it is to be considered on a basis of an admission in conflict with the promise sued upon. Findings of fact and conclusions of law contrary hereto are reversed. Lazansky, P. J., Kapper, Hagarty, Carswell and Tompkins, JJ., concur. Settle order on notice.
