Opinion
April, 1899.
Erdman, Levy Mayer, for appellant.
George B. Dunn, for Jorgensen.
Phillips Avery, for Voughts.
This action was brought to foreclose a mechanic's lien, filed against the property of the defendant Julia Thorn, who paid the amount claimed by the lien into court, and, at the opening of the trial, the complaint was dismissed as to her.
The defendants Henry H. and Nathan Vought, doing business as "Vought Brothers," and the defendant Jorgensen filed separate answers.
At the close of the plaintiff's case, each of the defendants made a motion to dismiss the complaint of the plaintiff, which motion was granted.
In such a case the testimony of the plaintiff and his witnesses must be taken as true, and must be construed in the light most favorable to the plaintiff. Schiller v. Dry Dock, E. B'y Battery R.R. Co., 26 Misc. 392. While the offer of the defendants "Vought Bros." to pay the sum of $30 and costs into court should not be regarded as an admission of liability on their part, yet there was testimony given on the part of plaintiff and his witnesses from which, standing, as it did, unexplained and uncontradicted, the court below might have found that the plaintiff performed some (so called) extra work, for which Vought Brothers promised and agreed to pay.
The answer of the defendant Jorgensen also expressly admits an indebtedness from him to the plaintiff of at least the sum of $10, and he (Jorgensen) is bound by that admission. Schreyer v. Mayor, 39 N.Y. Super. Ct. (7 J. S.) 1; Paige v. Willet, 38 N.Y. 28. The judgment, must, therefore, be reversed.
MacLEAN and LEVENTRITT, JJ., concur.
Judgment reversed, new trial ordered, with costs to appellant to abide event.