Shapiro v. Thomas B. Leahy Building Co.

112 N.Y.S. 1090

• Court: Appellate Terms of the Supreme Court of New York
• Decided: November 24, 1908
• Status: Published

Opinion

PER CURIAM.

This action was brought to recover the sum of $402.27 alleged to be a balance due for work performed and materials furnished. The plaintiff’s claim is based upon three contracts involving the amounts of $1,400, $1,300, and $175, respectively, and extra work performed and materials furnished of the value of $87, making the total cost price $2,962, upon which the plaintiff alleges only $2,559.73 has been paid, leaving a balance due of $402.27. The defendant resists this claim on the ground of payment as to the work performed under the contracts, and, as to the extra work, it claims that the work was not performed at its request.

The documentary evidence introduced conclusively shows that the plaintiff has been paid for the work performed under the three contracts with the exception of $18.47. As to the claim for the extra work performed, at the agreed price of $87, there was a conflict as to whom the credit was extended, and the decision of the trial justice as to this item should not be disturbed.

The judgment is reversed, and a new trial ordered, with costs to appellant to abide the event, unless the plaintiff stipulates to reduce the verdict rendered in his favor to $105.47 and costs, in which event the judgment, as so modified, will be affirmed without costs of this appeal to either party.