¶1The defendant Smith agreed with the defendant Cone to construct a house on his premises for the sum of $4,300, payable by installments. The first two installments had been paid, and $700 in advance, but without any collusion or intent to defraud thereby. Smith abandoned the contract, and Cone was compelled to pay over $3,000 to finish the house. The first two payments were $2,100. The owner had the right, by contract, to finish the building, and to deduct the expense from the contract price. There was performed, at the abandonment of the contract by Smith, no greater proportion of work to be done than the first two payments bear to the contract price of $4,300. The case of Van Clief v. Van Vechten, 130 N. Y. 571, 29 N. E. Rep. 1017, decides this case against the plaintiffs. The judgment should be affirmed, with costs. All concur.
21 N.Y.S. 224
Watson v. Cone
Decided December 12, 1892
New York Supreme Court · decided 1892-12-12
Action by James H. Watson and James H. Pittinger to enforce a mechanic’s lien against Gardner T. Cone and Jacob V. Smith for material furnished the latter in the erection of a house for defendant Cone. Smith did not appear. Judgment was rendered at special term in favor of Cone. Plaintiffs appeal. Affirmed.
Relies on Van Clief v. . Van Vechten
Decided 1892-12-12