Westchester Lathing Corp. v. Lashins, Inc.

In an action to recover compensation for lathing work, labor and services, and for materials furnished in connection therewith, the defendant appeals from a judgment of the City Court of Mount Vernon, entered March 10, 1958 after trial before the court, without a jury, in favor of the plaintiff. The subject matter of the action concerns certain “extras”, concededly no part of the original plans and specifications for the construction of a new building. The defendant asserted affirmative defenses of payment and accord and satisfaction. The prime issue was whether the defendant, who was the general contractor, had made an independent agreement with the plaintiff covering these “ extras ”, or whether such “ extras ” were encompassed in the defendant’s lathing and plastering arrangements with a subcontracting firm which had delegated the lathing work on the site to the plaintiff by agreement to which the defendant was not a party. Without disputing the rendition of *952the work or the claim that it has been done in a satisfactory manner, and without effectively disputing the reasonable value thereof, the defendant’s principal contention was that it had paid for the items in suit by its remittance of two certain cheeks to the lathing and plastering subcontractor. When issued these checks bore legends, inscribed by defendant, to the effect that they constituted payment in full for all lathing work on the premises. The legends were obliterated by the plaintiff before the deposit of the checks for collection. The trial court found that defendant had entered into an independent contract with plaintiff for the rendition of the work in suit, and that there was no mutuality of assent between the parties as to an accord and satisfaction on the liquidated sum claimed by plaintiff. Judgment affirmed, with costs. In our opinion, the record clearly indicates, as found by the trier of the fact, that the payments in issue were for liquidated amounts, not in dispute. Beldock, Acting P. J., Ughetta, Christ, Pette and Brennan, JJ., concur.