Smith v. Cary
Appellate Division of the Supreme Court of the State of New York
Appeal by the plaintiff, Jeremiah R. Smith, from an interlocutory judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Madison on the 21st day of July, 1913, upon the decision of the court rendered after a trial at the Madison Special Term sustaining a demurrer to the complaint.
1Opinion of the Court
Smith, P. J.:
This action was brought for the foreclosure of a mecnamc’s lien. The amended complaint sets out a builder’s contract in which the defendant Thomas H. Gary agreed to pay a certain sum as follows: “One-third when the roofing is completed; one-third when all the materials are on the premises; one-third when the job is completed and accepted by the architect.” The complaint further alleges that the plaintiff did the work and furnished the materials and “has duly performed all the conditions of the said contract on his part.” Section 533 of the Code provides: “In pleading the…
2Cases cited6 opinions
- Weeks v. . O'BrienNew York Court of Appeals · 1894
- Rowe v. GerryAppellate Division of the Supreme Court of the State of New York · 1903
- Conolly v. HyamsAppellate Division of the Supreme Court of the State of New York · 1900
- Fox v. CowperthwaitAppellate Division of the Supreme Court of the State of New York · 1901
- Vandegrift v. BertronAppellate Division of the Supreme Court of the State of New York · 1903
1 more not listed; retrieve them via the Exa API.