Campbell v. Mandeville

• Citation: 17 N.E. 866,110 N.Y. 628
• Parties: CAMPBELL v. MANDEVILLE et al.
• Decision Date: 12 June 1888
• Court: New York Court of Appeals

110 N.Y. 628

17 N.E. 866

CAMPBELL

v.MANDEVILLE et al.¹

Court of Appeals of New York.

June 12, 1888.

Appeal from supreme court, general term, Second department.

This is an action by John C. Campbell against Henry Mandeville and others for the foreclosure of a mechanic's lien for certain brick furnished by plaintiff and labor performed by him as a mason. A written contract was originally entered into by the parties which was subsequently waived. Plaintiff testified as to the amount of brick furnished, concrete laid, and labor performed, computing the balance still due him at $588.96. On behalf of defendants, an architect and several master masons testified that a less number of brick than estimated by plaintiff was used, he having made no deduction for openings in his computation, and the wall having been laid five inches higher than called for by the plans; and also estimated the value of the concreted laid and labor performed at a less sum than plaintiff's estimate. Defendants also interposed a counter-claim for about $100, for defective workmanship. Plaintiff's claim was reduced from $588.96 to $495.39, which, with interest added, amounted to $511.66. From the judgment defendants appealed, offering to allow judgment against themselves for $240.54.edward W. Thornhall

, for appellants.

Joseph F. Daly, for respondent.

PER CURIAM.

Although the answer is a denial of indebtedness, and contains a counter-claim for defective work of plaintiff, an examination of the evidence before the trial court shows that what was in controversy between the parties was not the right of plaintiff to recover at all, but simply the number of brick furnished by him to the buildings in question, the amount of concrete done, and the amount of excavantion, with the values of the work and materials. Such resort to the proceedings and evidence is authorized in Knapp v. Deyo, decided by this court February term, 1888. 108 N. Y. 518, 15 N. E. Rep. 540. The right of plaintiff to recover the market value for work done and material furnished by him does not seem to have been the subject of controversy upon the trial. The proof as to the counter-claim interposed by defendants was an offset to plaintiff's recovery. The trial court reduced the plaintiff's claim from $588.96 to $493.39, which, with interest added, amounted to $511.66. Taking the evidence adduced on defendants' behalf as to the items of brick, cement, and excavation, it is clear that they conceded...