Kelly v. William J. Merritt Co.

68 N.Y.S. 774

• Court: Appellate Terms of the Supreme Court of New York
• Decided: January 28, 1901
• Status: Published

Opinion

PER CURIAM.

The evidence showed that the lien was not filed within 90 days after the completion of the second contract. The plaintiff testified that he did the last of the work about the middle of February, and later in the trial fixed the time as in the middle of January, and described the work as occupying parts of two days, two, three, and four hours each day. If the plaintiff did work in January or February, it seems that it was not done in completion of the contract, but rather as a pretext for evading the law. The evidence of the witnesses Merritt, Doyle, and Lorber, corroborated by Exhibits 8 and 13, is convincing that the plaintiff had completed his contract prior to the doing of any work in or after January. The latter exhibit, with the evidence in regard to it, shows that the plaintiff, on January 3d, claimed to have completed his contract.

The judgment and order must be reversed, and there must be a new trial, with costs to the appellant to abide the event.