Scribner v. Cottone

Full title: CHARLES SCRIBNER, Appellant, v. JOSEPH R. COTTONE et al., Respondents, and…

Court: Supreme Court of New York, Appellate Division, Third Department

Date published: Nov 18, 1954

284 A.D. 1007 (N.Y. App. Div. 1954)

135 N.Y.S.2d 280

Opinion

284 A.D. 1007 135 N.Y.S.2d 280 CHARLES SCRIBNER, Appellant, v. JOSEPH R. COTTONE et al., Respondents, and MAYNARD W. SULLIVAN et al., Appellants. JOSEPH R. COTTONE et al., Third-Party Plaintiffs-Respondents, v. CARL VAN KEUREN, Third-Party Defendant-Appellant. MAYNARD W. SULLIVAN, Third-Party Plaintiff-Appellant, v. CARL VAN KEUREN, Third-Party Defendant-Appellant. MARY WARNER, Third-Party Plaintiff-Appellant, v. CARL VAN KEUREN, Third-Party Defendant-Appellant. EDGAR BUSH et al., Copartners Doing Business as BUSHs&sSNYDER, Third-Party Plaintiffs-Appellants, v. CARL VAN KEUREN, Third-Party Defendant-Appellant.

Supreme Court of New York, Third Department. November 18, 1954

         Cross appeals from a judgment entered upon the decision of CHRISTOPHER J. HEFFERNAN, Official Referee, entered in the office of the clerk of the County of Schoharie on October 13, 1953, dismissing the claims, counterclaims and cross claims, in an action to foreclose mechanic's liens. The principal controversy relates to the contractor's claims for extra work. The extra work claims are allowed in the amount indicated in a detailed memorandum handed down herewith, to be distributed to the attorneys and not to be published. We find that the contract clause requiring written orders for extra work was waived by the parties. The net balance found to be owing to the contractor is $2,051.09. The amounts owing to the lienors are undisputed and are allowed in accordance with their respective claims. Personal judgment is awarded in favor of the lienors against the contractor to the extent to which their liens exceed the net balance found to be owing to the contractor. The judgment appealed from is reversed, on the law and the facts, and judgment is directed in accordance with the foregoing memorandum and the memorandum handed down herewith, with a single bill of costs in favor of the appellants to be equitably apportioned among them. Order and judgment to be settled on notice.

         Bergan, J. P., Coon, Halpern, Imrie and Zeller, JJ., concur. [See 284 A.D. 1069.]