McClendon Blacktop Co. v. Walter S. Johnson Building Co.

46 A.D.2d 724, 360 N.Y.S.2d 342, 1974 N.Y. App. Div. LEXIS 3876

Opinion

Judgment unanimously modified in accordance with memorandum and as modified, affirmed, without costs. Memorandum: The testimony and evidence adduced at trial adequately supports trial court’s determination of the existence of a joint venture agreement between McClendon Blacktop Company, Inc., and Willie Maye Doing business as Willie Maye Construction Company, Inc., with reference to performance of Maye’s subcontract work, whereunder the parties agreed to divide the profits therefrom after deduction of their respective costs. However, in the computation of McClendon’s damages, as accepted by the trial court, the profit item added to McClendon’s costs for labor and equipment erroneously reflected the full amount of $1,368.61 for profit, as opposed to one half thereof in accordance with the agreement of the parties. Judgment herein as against Maye is, therefore, reduced to $4,518.88. The interest award on the judgment against defendant-appellant, Walter S. Johnson Building Company, Inc., was proper, there being no evidence that the combined award, as against said defendant-appellant, exceeds the amount of the undertaking herein filed pursuant to subdivision 5 of section 21 of the Lien Law. (Appeal from judgment of Niagara Trial Term in action for payment for work, labor and services.) Present—Marsh, P. J., Moule, Simons, Mahoney, Del Vecchio, JJ.