Johnson v. Thorn

27 Misc. 771, 57 N.Y.S. 762

Opinion

Freedman, P. J.

This action was brought to foreclose a mechanic’s lien, filed against the property of the defendant Julja Thom, who paid the amount claimed by the lien into court, and, at the opening of the trial, the complaint was dismissed as to .her,

' The defendants Henry. H. and Nathan Yought, doing business as “ Yought Brothers,” and the defendant Jorgensen filed separate answers.

At the close of the plaintiff’s case, each of the defendants made a motion to dismiss the complaint of the plaintiff, which motion •was granted.

In süch'a case the testimony of t¡he plaintiff . and' his witnesses must be taken as true, and must be construed in the light most favorable to the plaintiff. Schiller v. Dry Dock, E. B’y & Battery R. R. Co., 26 Misc. Rep. 392. While the offer of "the defendants “ Yought Bros.” to pay the sum of $30 and costs into epurt should not be regarded as an admission of liability oh their part, yet there was testimony given on the part of plaintiff and his witnesses from which, standing, as it did, unexplained. and uncontradicted, the ■court helow might have found that the plaintiff performed some (so called) extra work, for which Vought Brothers promised and agreed to pay.

The.answer of the defendant Jorgensen also expressly admits an indebtedness from him to the plaintiff of at least the sum of $10, and he (Jorgensen) is bound by that admission.. Schreyer v. Mayor, 39 N. Y. Super. Ct. (7 J. & S.) 1; Paige v. Willet, 38 N. Y. 28. The judgment, must, therefore, be reversed.

MacBean and Beventritt, JJ., concur.

Judgment reversed, new trial ordered, with costs to appellant, to abide event.