Tercosi v. Bigus , 228 A.D. 643 ( 1929 )

— Judgment modified by striking out the sum of $180.05 granted plaintiff as an extra allowance, and as so modified judgment unanimously affirmed, without costs. We think this allowance was not justified in this case, and, therefore, reverse so much of conclusion of law numbered XIV as includes this allowance. The amount of recovery follows closely appellants’ own figures, totaling $3,982.70, but this represents only the cost of the labor and materials, to which should be added the contractor’s ten per cent, thus totaling $4,380.97; deducting therefrom $2,300, admittedly paid on account, leaves a balance of $2,080.97. To this must be added the Klein hen of $530, which amount plaintiff is obligated to pay out of his own recovery. The total, therefore, is $2,610.97, being approximately $10 over and above the amount awarded by the official referee. We find no error in the computation of which the appellants can complain, but reverse the official referee’s refusal to find that plaintiff had been paid the sum of $2,300 on account, as we regard such refusal to have been purely inadvertent. Present — Lazansky, P. J., Young, Kapper, Hagarty and Carswell, JJ. Settle order on nolice.