Opinion
December 20, 1943.
Action to foreclose a mechanic's lien and to recover damages for breach of contract. Order of the County Court of Nassau County denying motion to strike out for insufficiency the second and third partial defenses and counterclaims reversed on the law, with ten dollars costs and disbursements, and the motion granted, with ten dollars costs. The contract contains no language requiring the plaintiff to install curbs and lay sidewalks. It merely sets forth an agreed price for such services under the caption "Extra Work." That this term was employed in accordance with its ordinary meaning as work independent of the contract and not required in its performance ( Shields v. City of New York, 84 App. Div. 502, 505; Fetterolf v. S. L. Construction Co., 175 App. Div. 177, 179) is evident from the fact that these items are not included in the "Scope of Work" provision of the contract. Close, P.J., Hagarty, Carswell, Johnston and Adel, JJ., concur. [See post, p. 870.]