Bibeau Construction Co. v. Hauser Bros.

Appellate Division of the Supreme Court of New York

Bibeau Construction Co. v. Hauser Bros.

39 A.D.2d 955, 333 N.Y.S.2d 459, 1972 N.Y. App. Div. LEXIS 4264

CourtAppellate Division of the Supreme Court of the State of New York

DecidedJune 19, 1972

StatusPublished

This text of 39 A.D.2d 955 (Bibeau Construction Co. v. Hauser Bros.) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Bibeau Construction Co. v. Hauser Bros., 39 A.D.2d 955, 333 N.Y.S.2d 459, 1972 N.Y. App. Div. LEXIS 4264 (N.Y. Ct. App. 1972).

Pincite

Opinion

In an action to foreclose a mechanic’s lien for a public improvement, defendant Hauser Brothers, Inc., appeals from a judgment of the Supreme Court, Rockland County, entered October 22, 1971 after a nonjury trial, against it and in favor of plaintiff for $33,734.93 plus interest, costs and disbursements, with direction to the Rockland County Treasurer to remit to plaintiff $13,862.98, less his charges, which sum was held by him to the credit of the action. Judgment modified, on the law and the facts, by reducing the principal award to plaintiff from $33,734.93 to $13,311.73 and accordingly reducing the amount allowed as interest and the total amount of the judgment. As so modified, judgment affirmed, without costs. In our opinion there is no basis for a recovery by plaintiff, a subcontractor for the excavation and installation of underground utilities, against appellant, the prime plumbing contractor, from which plaintiff subcontracted its work. Plaintiff seeks to hold appellant liable for “extra” excavation it performed when Mardan Construction Corporation, another prime 'contractor on the project, failed to properly grade the job site in accordance with the specifications in the construction plans. Such “extra” excavation was performed without the authorization of appellant and even after appellant had written as follows to plaintiff: “Please do not do any extra work on the * * * project unless you receive a written order from us. If you do, it will be your responsibility, not ours.” Under such circumstances we find no justification for imposing liability for the “extra” excavation upon appellant. This is especially so where the claimed “extra” excavation did not benefit appellant. Hopkins, Acting P. J., Munder, Martuscello, Gulotta and Christ, JJ., concur.

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In an action to foreclose a mechanic’s lien for a public improvement, defendant Hauser Brothers, Inc., appeals from a judgment of the Supreme Court, Rockland County, entered October 22, 1971 after a nonjury trial, against it and in favor of plaintiff for $33,734.93 plus interest, costs and disbursements, with direction to the Rockland County Treasurer to remit to plaintiff $13,862.98, less his charges, which sum was held by him to the credit of the action. Judgment modified, on the law and the facts, by reducing the principal award to plaintiff from $33,734.93 to $13,311.73 and accordingly reducing the amount allowed as interest and the total amount of the judgment. As so modified, judgment affirmed, without costs. In our opinion there is no basis for a recovery by plaintiff, a subcontractor for the excavation and installation of underground utilities, against appellant, the prime plumbing contractor, from which plaintiff subcontracted its work. Plaintiff seeks to hold appellant liable for “extra” excavation it performed when Mardan Construction Corporation, another prime 'contractor on the project, failed to properly grade the job site in accordance with the specifications in the construction plans. Such “extra” excavation was performed without the authorization of appellant and even after appellant had written as follows to plaintiff: “Please do not do any extra work on the * * * project unless you receive a written order from us. If you do, it will be your responsibility, not ours.” Under such circumstances we find no justification for imposing liability for the “extra” excavation upon appellant. This is especially so where the claimed “extra” excavation did not benefit appellant. Hopkins, Acting P. J., Munder, Martuscello, Gulotta and Christ, JJ., concur.

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Bluebook (online)

39 A.D.2d 955, 333 N.Y.S.2d 459, 1972 N.Y. App. Div. LEXIS 4264, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bibeau-construction-co-v-hauser-bros-nyappdiv-1972.