Brislin Co. v. Roedel

177 A.D. 893

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 15, 1917
• Status: Published

Opinion

Thomas, J.:

The written schedule shows on its face that it was not, and could not be, related to the loan agreement, but the court adopted it, except as to the last two payments, and without any evidence justifying it, changed it where incongruous. The written agreement filed authorized payments in the bank’s reasonable discretion, and the payments made even on July 21,1915, show that the schedule was not adopted, and even if the court’s schedule of payments be approved, it shows that Roedel had been overpaid on September 22, 1915, when the plaintiff’s lien was filed, whereupon by the agreement the bank could refuse to make further payments. The work was not completed and the evidence does not justify the finding that the failure of the bank to make due payment caused the suspension. The payments of $131 and $150 on September 25, 1915, were after the filing of the plaintiff’s lien and before the filing of the Bossert lien. The contract allowed the fees of the attorneys to be deducted (Pennsylvania Steel Co. v. Title Guarantee & Trust Co., 193 N. Y. 37, 45), and they are not shown to be unreasonable. The judgment of the County Court of Queens county should be reversed, and judgment entered that the bank has a lien for the sum of $4,812.80 as against the plaintiff, and $5,092.80 as against the defendants Bossert, with costs of this appeal and of the action against the defendants Bossert. Jenks, P. J., Mills, Rich and Putnam, JJ., concurred. Judgment of the County Court of Queens county reversed, and judgment directed to be entered that the bank have a lien for the sum of $4,813.80 as against the plaintiff, and $5,093.80 as against the defendants Bossert, with costs of this appeal and of the action against the defendants Bossert.