Lamson Co. v. Central New York Regional Market Authority

258 A.D. 851, 15 N.Y.S.2d 955, 1939 N.Y. App. Div. LEXIS 7228

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 15, 1939
• Status: Published

Opinion

Judgment affirmed, with costs. Memorandum: The construction of the regional market was a public improvement. (Callanan Road Improvement Co. v. McMullen Co., 253 App. Div. 424; affd., 280 N. Y. 536.) The evidence shows that the Gray Steel Corporation entered into a contract with the general contractor for the construction of the regional market, in which the Gray Steel Corporation agreed to perform part of the contract of the general contractor. It also shows that the plaintiff entered into a contract with the Gray Steal Corporation for the performance of part of the latter’s contract. Therefore, the plaintiff became a subcontractor. fLien Law, § 2.) The contract referred to in the complaint and in the notice of hen was thereafter modified by oral agreement of the parties and the plaintiff performed work under such contract as modified and became entitled to a hen upon the moneys due for the construction of the regional market. The plaintiff has recovered in accordance with its complaint and its notice of hen. All concur, except Dowling, J., who dissents and votes for reversal on the law and for granting a new trial on the ground that the plaintiff on the undisputed evidence was a materialman and not a subcontractor. (The judgment is for plaintiff in an action to foreclose a mechanic’s hen upon pubhc funds.) Present — Crosby, Cunningham, Taylor and Dowhng, JJ.