Kaufman v. Tremaine

248 A.D. 628

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 15, 1936
• Status: Published

Opinion

an action brought in the County Court of Suffolk county to foreclose a municipal lien, which lien was discharged by the giving of a bond, judgment for the plaintiffs modified by reducing the sum found due to the plaintiffs from $6,169.87 to $1,794.71, with interest from the 29th day of July, 1931, and as so modified unanimously affirmed, without costs. In our opinion, the finding that the plaintiffs were entitled to recover for all of the work contemplated under their contract with the defendant construction company which was done on the projects was against the weight of the credible evidence. The weekly progress reports, upon which the plaintiffs rely, show that only seventy per cent of the work was completed at a time subsequent to that when the plaintiffs quit work. We are also of opinion that because of defects and omissions the defendant construction company was required to do part of the work, not only after the plaintiffs left the projects, but even while they were there. In our opinion, the plaintiffs should have credit for 28,000 cubic yards of excavation, instead of the 42,000 cubic yards which were allowed. This reduces the credits to the plaintiffs from $15,839.25 to $11,639.25. In addition, the defendant is entitled to increased deductions from $5,680 to $5,800, by way of direct payment, and $55.16 expended on behalf of the plaintiffs. These sums are conceded or admitted, and increase the offset from $9,669.38 to $9,844.54, leaving a net balance due the plaintiffs in the aforesaid sum of $1,794.71. Findings of fact and conclusions of law inconsistent herewith are reversed and new findings and conclusions will be made. Present — Lazansky, P. J., Hagarty, Carswell, Adel and Taylor, JJ. Settle order on notice.