Legal Opinion
Nesbit v. Braker
Appellate Division of the Supreme Court of the State of New York
Decided May 15, 1905PublishedCited by 2 opinions
Appeal by the defendant, Henry J. Braker, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the .county of Hew York on the 8th day of August, 1904, upon the decision of the. court, rendered after a trial at the Hew York Special Term, in án áction brought for the foreclosure of a mechanic’s lien. ■ ■ "
1Opinion of the Court
Hatch, J.:
"By the terms of the contract, pkyment for the .work was only to be made upon the written certificate of the architect; therefore, the ' plaintiffs,, to maintain the action, in the absence of the certificate,' ,were required to show not only a demand and refusal of the architect to deliver the same, but also that it was unreasonably withheld; This being a part of the plaintiffs’ affirmative case, the burden devolved Upon them to establish, such facts, by a preponderance of proof. (Bowery Nat. Bank v. Mayor, 63 N. Y. 336.)
The complaint avers’complete performance of' the contract,…
2Cases cited4 opinions
- Van Clief v. . Van VechtenNew York Court of Appeals · 1892
- Spence v. . HamNew York Court of Appeals · 1900
- Bowery National Bank v. Mayor of New YorkNew York Court of Appeals · 1875
- Mitchell v. WilliamsAppellate Division of the Supreme Court of the State of New York · 1903
3Cited by2 opinions
- Atkinson v. Jackson Bros.Texas Commission of Appeals · 1925
- Nesbit v. BrakerAppellate Division of the Supreme Court of the State of New York · 1908