Kingston v. Berry

27 Misc. 803, 58 N.Y.S. 331

• Court: Appellate Terms of the Supreme Court of New York
• Decided: May 15, 1899
• Status: Published

Opinions

Leventritt, J.

The plaintiff, a subcontractor under the defendant, recovered judgment for a. balance due on certain plastering in the house of one Hannah J. Allen, which the defendant had agreed to erect. A written contract was entered into between the parties .to this action, and therein reference was made to the plans and specifications according to which all the work, including the plastering, was to be done; no reference was, however, made to the general contract between the defendant and Mrs. Allen.

It was admitted that the balance had not been paid, the defendant maintaining his. right to withhold it on account of plaintiff’s, defective work. Upon hearing the evidence on the issue thus raised, the' court found against the defendant and his just conclusion, involving merely the solution of a conflict of evidence, we cannot disturb. Conroy v. Allen, 23 Misc. Rep. 125.

The appellant, however, predicates error on the exclusion of the general contract between Mm and Mrs. Allen. But none of its conditions were' imported into the plaintiff’s plastering contract, which was an. entirely independent agreement. Further examination of. the excluded contract shows that none-of its provisions affect the rights of the parties. ’ '■

The -judgment should, therefore, be affirmed.

Freedmae, P. J., concurs.