Tuxedo Park Ass'n v. Jackson , 127 N.Y.S.2d 364 ( 1954 )

Cross appeals, in an action to foreclose a mechanic’s lien, from the judgment in favor of plaintiff, Tuxedo Park Association, Inc., in the sum of $1,073.47, insofar as said judgment, in effect, grants certain allowances to said plaintiff and to defendants Paul E. Jackson and Jackson & Company, and denies a recovery to said defendants against plaintiff for willful exaggeration of the notice of lien. Judgment modified on the facts by increasing by $1,500 the amount found due to said plaintiff, and, as so modified, unanimously affirmed, with costs to Tuxedo Park Association, Inc. Finding of fact numbered “12” is modified by striking therefrom everything which follows the clause “ agreement to carefully preserve ” and by adding thereto “ the Adams mantel in consequence of which said mantel was broken and rendered valueless to the damage of said defendants in the sum of $750 for which sum plaintiff is indebted to said defendants.” Upon the evidence herein, the parties were respectively entitled to all items allowed, except that defendants Paul E. Jackson and Jackson & Company should not have been allowed a credit of $1,500 for damages to an Italian marble mantel, which had been properly stored on the premises by plaintiff. After the house had been occupied by, and in the sole possession of, a tenant of said defendants for almost a year, said mantel was found to be broken, and the record does not disclose the cause of the breakage. In the circumstances, the evidence does not warrant the finding that plaintiff was responsible for this damage. Present — Nolan, P. J., Wenzel, MaeCrate, Schmidt and

Beldoek, JJ.