Donovan v. Pennsylvania Railroad

230 A.D. 786

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: September 15, 1930
• Status: Published

Opinion

Judgment modified by reducing plaintiff’s lien to $350 with interest from April 2, 1928, and as modified affirmed, without costs. Finding of fact numbered 27 is reversed as being without evidence in its support. Finding numbered 35 is reversed, the ease having been tried upon the theory of a fixed amount of lien and not upon any theory of the reasonable value of plaintiff’s services. Under the authority of Matter of Levy (249 N. Y. 168) and Corcoran v. Kellogg Structural Co. (179 App. Div. 396) the settlement with Oldmixon was made as a matter of right, with plaintiff’s lien necessarily reduced proportionately. Other findings and conclusions of law inconsistent herewith are reversed, and new findings, so far as necessary, will be made. Lazansky, P. J., Rich, Kapper, Hagarty and Carswell, J-L, concur. Settle order on notice.