Foshay v. Robinson , 43 N.Y. St. Rep. 20 ( 1891 )

Barnard, P. J.

The appellant, Boyd, is the owner of a piece of land at Larchmont in Westchester county. He made a contract with Frederick Robinson to build a house thereon for $7,820. The payments were provided for by installments. The first two installments were earned and paid. The third installment, $1,800, was to be paid when the plastering was complete. The contractor failed to complete the work which entitled him to this payment, and the owner, under a power contained in the agreement, took possession of the work and completed the plastering. This cost the owner $284. There was some defective work done by the contractor amounting to $485. The contractor, when he failed to complete the work, had done some woi k towards earning the fourth payment, which was $1,000, when the interior trim was complete. The owner completed the house. The referee has found that at the time the contractor left the work he had earned the sum of $1,031 more than he had received pay for, after allowing for bad work which had to be repaired, and which was deducted before this balance of $1,031 was reached. The defendants Young & Tripp were the first lienors for material furnished for the work, and their claim was greater than this balance; and to that firm was awarded the entire balance. The case falls within the case of Van Clief v. Van Vechten, 1 N. Y. Supp. 99, and Wright v. Roberts, 43 Hun, 413, affirmed, 118 N. Y. 672, 23 N. E. Rep. 1145. The case of Larkin v. McMullin, 120 N. Y. 206, 24 N. E. Rep. 447, holds only that under a contract which was not completed, and where the referee found that nothing was due under it, no lien could exist in favor of person who sold materials to the contractor. The questions of fact presented are supported by the evidence. The witness Tripp positively states that the articles for which the lien is claimed went into the house in question. The controversy was one involving great doubt as to the omissions of the contractor and the value of the work actually done when he abandoned the performance of the contract. The trial court was the best judge of the credibility of the witnesses, and no case is presented on question of fact upon appeal, unless the evidence is of such preponderating weight that a reversal is called for for that reason. Ho such ease is presented, and the judgment should be affirmed, with costs. All concur.