Opinion
March 28, 1960
Present — Beldock, Acting P.J., Ughetta, Kleinfeld, Christ and Brennan, JJ. Settle order on notice.
In an action by a general contractor to foreclose a mechanic's lien, the owner appeals (1) from a judgment, entered after trial, which, inter alia, adjudged that respondent has a lien for $6,083.84, with interest, (2) from an order entered April 23, 1959 which denied appellant's motion to vacate and set aside the decision, and (3) from an order entered July 28, 1959 which denied appellant's motion to vacate the judgment. The Special Term found that respondent had substantially performed its contract and that the agreed price therefor, including certain extras of $456.76 was $7,446.76. The court also found that appellant was entitled to (a) a credit of $465, conceded to be due to her for certain work not performed, and (b) a further credit of $897.92 for other work either not performed or improperly performed. Judgment modified upon the facts by striking from the first decretal paragraph the figure "$6,083.84" and by substituting therefor the figure "$5,991.68", and by adjusting the interest and the final amount of the judgment, wherever it appears, accordingly. As so modified, judgment and orders unanimously affirmed, with one bill of costs to respondent. Findings of fact insofar as they may be inconsistent herewith are reversed, and new findings will be made as indicated herein. In our opinion, the finding by the trial court that respondent substantially performed its contract is supported by the record. The proof warrants a finding, however, that the price for the extras ($456.76) originally agreed upon should be reduced by $92.16, as conceded by respondent.