Gersmann v. Walpole
Appellate Terms of the Supreme Court of New York
Appeal by Mary Walpole, owner, and Edward J. Farrell and William B. O’Mally, as sureties, from a judgment rendered in the City Court of the city of blew York in favor of the plaintiff, after a trial by the court, the notice of appeal bringing up for review an order denying a motion made by defendant Walpole for an order framing the issues arising upon her counterclaim and for a jury trial.
1Opinion of the CourtGuy, J.
The action is brought to foreclose a mechanic’s lien where an undertaking has been given to discharge the lien.
The complaint alleges a quantum meruit for $335 and interest. Both the owner and the sureties were made defendants and both of them appeal.
The answer of the owner denied the material allegations of the complaint and set up a counterclaim of $5,000 for breach of contract.
The court found that the reasonable value of the work done and materials furnished was $1,485 of which $1,150| had been paid; also that plaintiff had substantially performed. The pleadings admitted the execution of an…
2Cases cited10 opinions
- MacKellar v. . RogersNew York Court of Appeals · 1888
- Fox v. DavidsonAppellate Division of the Supreme Court of the State of New York · 1899
- Shepard v. Manhattan Railway Co.New York Court of Appeals · 1892
- Smith v. FleischmanAppellate Division of the Supreme Court of the State of New York · 1897
- Schillinger Fire Proof Cement & Asphalt Co. v. ArnottNew York Court of Appeals · 1897
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3Cited by3 opinions
- Decatur County v. Praytor, Howton & Wood Contracting Co.Supreme Court of Georgia · 1927
- In re B. & J. Concrete Co.Appellate Division of the Supreme Court of the State of New York · 1964
- Lehman v. CoulterNorth Dakota Supreme Court · 1918