Collins v. Wilson

40 A.D.2d 750, 337 N.Y.S.2d 541, 1972 N.Y. App. Div. LEXIS 3637

Opinion

Judgment unanimously affirmed, with costs. Memorandum: Plaintiff’s action was on the basis of an express contract to pay for “ time and materials ” incorporated in the addition to defendant’s house as well as for extra work ordered by defendant after the commencement of the job. Defendant claimed that the agreement between the parties was for a fixed price of $19,000. The court found that there was an express contract for the cost of labor and mate rial and awarded plaintiff $29,401.18. Defendant also seeks a reversal on the ground the plaintiff failed to prove that the charges made by him for labor and material were fair and reasonable. The record supports the court’s finding that there was an express contract as well as the finding that the charges were fair and reasonable. We should not disturb findings based upon conflicting evidence and involving credibility of witnesses unless it is obvious that the court’s conclusion could not be reached by any fair interpretation of the evidence (Swensson v. New York, Albany Desp. Co., 309 N. Y. 497, 505; Billington v. State of New York, 33 A D 2d 822, 823). (Appeal from judgment of Oswego County Court in action to foreclose mechanic’s lien.) Present —Del Vecchio, J. P., Marsh, Witmer, Cardamone and Henry, JJ.