D'Andre v. Zimmerman

16 Misc. 499, 38 N.Y.S. 1121

• Court: City of New York Municipal Court
• Decided: April 15, 1896
• Status: Published

Opinion

Van Wyck, Ch. J.

The plaintiffs duly filed a mechanic’s lien against defendant Joseph J. Zimmerman’s real property upon a claim for stone work done under a written contract with him, and the five Italian defendants who did -a part of the work for plaintiffs also filed liens. . After' this action was commenced by plaintiffs to foreclose their lien, the defendants McIntyre and Jacob A. Zimmerman as sureties executed a .bond for the discharge of plaintiffs’ lien, which, was duly,approved and-, the' lien duly discharged, and said sureties duly made parties defendant by the amended complaint, which was served upon them, and to which ■they, with Joseph J.' Zimmerman, the defendant owner, interposed the same answer, by which every allegation x>f -the amended ¿om-plaint was admitted, except the one as to -plaintiffs’ copartnership, and the allegation that the work done by plaintiffs under the written contract was of the agreed price .of $390.24, and set up affirmatively that although the written contract provided .that plaintiffs were to do the stone work for six cents per cubic foot, .that the real agreement was that they were to do it- for- five cents per cubic foot. The complaint duly set up the cause of action, notwithstanding appellants’ contentions - regarding the same.. The plaintiffs proved at trial that they had completed 5,76.6 cubic feet of stone work for the defendant-owner at the agreed price of $345.96, being six cents per cubic foot, and the court-so found, but as plaintiffs had left undone some little work of the value of $13.80, the court found that this should be deducted and ordered judgment for $332.16, with interest and costs, amounting in all to $454.14, in favor of plaintiffs, against defendants Joseph J. Zimmerman, McIntyre and Jacob A. Zimmerman, and this appeal is by these defendants from such judgment duly entered. At. trial the claims by the five Italian defendants against plaintiffs were adjusted, and the court’s findings directed that they each might take judgments .against plaintiffs for the same as so adjusted, tó which plaintiffs consented^ What possible injury could these appellants sustain by reason of these judgments, not against, them, but against the plaintiffs, and, moreover, ifr does not appear, that they were ever, obtained, and the only judgment'that has to be dealt with on this appeal is plaintiffs’ judgment against the appellants, which is affirmed, with costs.

Fitzsimoks, J., concurs.

Judgment affirmed, with -costs.