Pine Hill Concrete Mix Corf. v. Leinwand

Judgment unanimously affirmed, with costs. Memorandum: The evidence presented a question of fact for the court, sitting without a jury, as to whether defendants owed to M & T Construction Company (M & T) an amount in excess of M & T’s indebtedness to plaintiff. It is apparent that the court treated the assignment as security for such indebtedness, and hence did not award to plaintiff the full amount which plaintiff claimed was owing by defendants to M & T. Since plaintiff is not cross-appealing, there is no basis for us to disturb the judgment. (Appeal from judgment of Erie Supreme Court—materials furnished, etc.) Present—Marsh, P.J., Cardamone, Hancock, Jr., Denman and Witmer, JJ.