Jack Souza & Son, Inc. v. Ellenberg

Appellate Division of the Supreme Court of New York

Jack Souza & Son, Inc. v. Ellenberg

145 A.D.2d 606

CourtAppellate Division of the Supreme Court of the State of New York

DecidedDecember 29, 1988

StatusPublished

This text of 145 A.D.2d 606 (Jack Souza & Son, Inc. v. Ellenberg) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Jack Souza & Son, Inc. v. Ellenberg, 145 A.D.2d 606 (N.Y. Ct. App. 1988).

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Opinion

— In an action to foreclose a mechanic’s lien, the defendants appeal from a judgment of the Supreme Court, Westchester County (Reilly, J.H.O.), dated June 11, 1987, which is in favor of the plaintiff and against them in the principal sum of $32,150.

[607]*607Ordered that the judgment is affirmed, with costs.

We agree with the trial court’s determination that the plaintiff did not breach the contract in question. Under the circumstances of this case the defendants breached the contract when they withheld required periodic payments on invoices which they had approved relating to the daily rental of excavating equipment. We therefore find that the court properly awarded the plaintiff a judgment foreclosing its mechanic’s lien in the principal sum of $32,150, representing the total sum on four unpaid invoices (all of which were signed as accepted by the defendant Shepard Ellenberg), less a $10,000 deposit given to the plaintiff by the defendants. Lawrence, J. P., Rubin, Spatt and Sullivan, JJ., concur.

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— In an action to foreclose a mechanic’s lien, the defendants appeal from a judgment of the Supreme Court, Westchester County (Reilly, J.H.O.), dated June 11, 1987, which is in favor of the plaintiff and against them in the principal sum of $32,150.

[607]*607Ordered that the judgment is affirmed, with costs.

We agree with the trial court’s determination that the plaintiff did not breach the contract in question. Under the circumstances of this case the defendants breached the contract when they withheld required periodic payments on invoices which they had approved relating to the daily rental of excavating equipment. We therefore find that the court properly awarded the plaintiff a judgment foreclosing its mechanic’s lien in the principal sum of $32,150, representing the total sum on four unpaid invoices (all of which were signed as accepted by the defendant Shepard Ellenberg), less a $10,000 deposit given to the plaintiff by the defendants. Lawrence, J. P., Rubin, Spatt and Sullivan, JJ., concur.

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Bluebook (online)

145 A.D.2d 606, Counsel Stack Legal Research, https://law.counselstack.com/opinion/jack-souza-son-inc-v-ellenberg-nyappdiv-1988.