Glacius v. Black

11 N.Y. Sup. Ct. 91

Opinion

Barnard, P. J.:

This action was originally brought to enforce a lien. It "has been once tried before a referee, and the plaintiffs recovered a judgment. This judgment was reversed by the Court of Appeals. The second trial was before a jury. Eo lien is now demanded.

The jury rendered a verdict for the plaintiffs, on which a personal judgment has been entered against the defendant. The defendant appeals. If the validity of the lien law could be raised on this appeal, it would be useless to argue the question, in view of the many adjudications of the Court of Appeals, upholding and enforcing the provisions of that law.

The present judgment is personal; and that such a judgment is permitted in this action, is decided in this case by the Court of Appeals.

* I discover no error committed on the trial. The question whether the contract had been substantially performed, was one of fact for the jury. The evidence was very conflicting. The judge could neither nonsuit nor direct a verdict. He instructed the jury according to the law of this case, as decided by the Court of Appeals. The judgment should be affirmed, with costs.

Present — Barnard, P. J., and Gilbert, J.

Judgment and order denying new trial affirmed, with costs.

Glacius v. Black, 50 N. Y., 145