141 A.D. 382, Steiger v. London

Citation:141 A.D. 382
Party Name:FERDINAND STEIGER, Appellant, v. JULIUS LONDON and MOSES PRESS (Otherwise Known as MOE PRESS), Respondents, Impleaded with LOUIS MERYASH and Others.
Case Date:December 09, 1910
Court:New York Supreme Court Appelate Division, First Department
 
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141 A.D. 382

FERDINAND STEIGER, Appellant,

v.

JULIUS LONDON and MOSES PRESS (Otherwise Known as MOE PRESS), Respondents, Impleaded with LOUIS MERYASH and Others.

Supreme Court of New York, First Department.

December 9, 1910

APPEAL by the plaintiff, Ferdinand Steiger, from a judgment of the Supreme Court in favor of the defendants Julius London and Moses Press, entered in the office of the clerk of the county of New York on the 25th day of March, 1910, upon the decision of the court, rendered after a trial at the New York Special Term, dismissing the complaint upon the merits.

COUNSEL

Louis O. Van Doren, for the appellant.

Joseph M. Proskauer, for the respondents.

SCOTT, J.:

The plaintiff appeals from a judgment dismissing his complaint in an action to foreclose a mechanic's lien for materials furnished and work done under a contract by which plaintiff agreed to do the

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plumbing work in four houses owned by the defendants London and Press. By the terms of the contract the plaintiff was to be paid in five installments of unequal amounts as the work progressed. A time arrived, in November, 1906, after the plaintiff had completed a part of the work and furnished a good deal of material, that he became apprehensive lest the defendants might be unable to pay him his future installments, and refused to proceed further unless he was paid the next installment of the contract price, or furnished with security therefor. At this time he had been paid the first two installments due under the contract, and the third installment was not yet due. There was, therefore, no legal justification for his refusal to go further with the work. Upon this evidence the court at Special Term found that plaintiff had abandoned the contract and could recover nothing thereunder, notwithstanding, as it also found, that the amount paid to the plaintiff for the first two installments, plus the amount expended by the owners to complete the work was less than the total contract price. That the plaintiff abandoned his work without legal cause is undoubtedly true, but whether or not that abrogated the contract, so as to deprive him of any rights under it is another question which depends upon the action taken at the time by the owners. A very similar state of facts was considered by the Court of Appeals in Fraenkel v. Friedmann (199 N.Y. 351). The contract under consideration...

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