Foley v. Alger

4 E.D. Smith 719

• Court: New York Court of Common Pleas
• Decided: November 15, 1855
• Status: Published

Opinion

By the Court.

Ingraham, First J.

The only point upon which there is any difficulty in sustaining this judgment is, as to the amount due upon the contract. The contractor, who was examined as a witness, says there were seven hundred dollars due on the contract; but on the cross examination he says that the amount is made up of the balance due on the contract, and the amount due for extra work.

We have repeatedly held, that extra work, not in any manner provided for in the contract, is not included within the provisions of this statute, and the Court of Appeals have also so held in regard to the former statutes.

It nowhere appears in the case what the balance due on the contract was, and we have no means of saying whether the property of Cough was liable for the amount claimed or not.

In addition to this, the return is very improperly made up. All the exhibits referred to are not annexed to the return. The contract and notices which were in evidence, and which are material to a right understanding of it, are not to be found with it. If the originals are not left with the justice, the parties having them should furnish copies for the purpose of being annexed to the return.

The case should he sent back to the parties to enable the appellant to procure a further return.

Ordered accordingly.