Jack Souza & Son, Inc. v. Ellenberg

145 A.D.2d 606

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.

Ordered 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.