Gerry v. Painter ( 1898 )

Opinion by

Orlady, J.,

The plaintiff files his claim “ for materials furnished and work performed in tiling floor, .... furnished to and supplied for and toward the erection and construction of and on the faith and credit of ” the building described in the claim. The affidavit of defense asserts that the whole work done on the defendant’s building “ was not erection and construction of a new building, but simply alterations and addition to an old building.” The defendant adds, by supplemental affidavit, some details as to the character of the work done on the building. He says that more than half of the old walls are still standing; that they remain substantially as1 they were before the alteration; that the materials, taken out of some fifty feet of the old wall and foundation, were used in the general alterations of the building; that the principal portion of the wooden girders was utilized in the alterations; that it is plainly evident that the old walls remain, covered in many places with the old plastering and marks of an old staircase; that the building was, prior to the alterations, a hat factory, that it is still used for that purpose, and that the manufacture of hats was carried on for a large portion of the time during the said alterations. These in substance are the allegations of the affidavit raising the first matter of defense.

The positive allegation of the affidavits that the work was alteration, not new construction, is fortified by statements of fact. These raise a case sufficiently doubtful to require its submission to a jury to determine the character of the construction under proper instructions. We are further impelled to this conclusion by reason of the fact that the lien (which forms the basis of the plaintiff’s claim), contains only an allegation of new construction, leaving the affidavits of defense to indicate the facts upon which the case can at present be considered.

While this may be a close case, we are of opinion that the court below was right in refusing judgment on the affidavits.