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Schwartz v. Klar

Supreme Court of New York, Appellate Division

April 7, 1911

TOBIAS SCHWARTZ, Respondent,
v.
SAMUEL KLAR and BARNET KLAR, Doing Business as KLAR BROTHERS, Appellants, Impleaded with JOSEPH KLEPPER and Others, Defendants.

Page 38

APPEAL by the defendants, Samuel Klar and another, doing business as Klar Brothers, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 15th day of April, 1910, upon the decision of the court rendered after a trial at the New York Special Term.

COUNSEL

Jacob R. Schiff, for the appellants.

Louis Scheuer, for the respondent.

OPINION

DOWLING, J.:

The complaint herein is one for the foreclosure of a mechanic's lien and contains allegations of the ownership by defendants Klar of certain premises on First street near Avenue A in the city of New York; of the making of an agreement by them with plaintiff whereby the latter was to perform certain work, labor and services and furnish certain materials in the alteration of the buildings on said premises at the agreed aggregate price of $3,900, to be paid in installments; of the performance of certain extra work and the furnishing of certain extra materials by plaintiff at the special instance and request of said defendants of the agreed price and reasonable value of $1,724; of due and substantial performance by plaintiff of his contract; of the payment by defendants of $3,250 on account, and of a balance due plaintiff of $2,374. The judgment demanded was that plaintiff be adjudged to have a valid lien to that amount; that the premises be sold to satisfy same; and that plaintiff have personal judgment against the defendants Klar for any deficiency on such sale. An answer having been interposed, practically putting in issue all the material allegations of the complaint, a supplemental answer was thereafter served, wherein, as a separate defense, it was averred that after the commencement of this action the parties entered into the following written agreement:

Page 39

'NEW YORK SUPREME COURT,

' New York County.

_______________________________ )

'TOBIAS SCHWARTZ, )

'Plaintiff, )

'against )

'SAMUEL KLAR and BARNET KLAR, )

'Defendants. )

_______________________________ )

'It is hereby stipulated and agreed that the above-entitled action shall be settled upon the following terms and conditions:

'The plaintiff is to remove at his own cost and expense any and all violations in any of the Municipal Departments existing, this day, or which may hereafter arise as a result of the alteration work which was to be performed by this plaintiff for these defendants upon the premises mentioned in the complaint. The said plaintiff is also to have canceled and discharged at his own cost and expense any and all mechanics' liens which are now on file or which may hereafter be filed against this plaintiff as contractor up to the day of payment to him as hereinafter mentioned. The plaintiff also agrees to place wainscoting around the toilet and on the wall from the hallway inside and the kitchen in three apartments, also wardrobes in three apartments. The defendants agree to pay to the plaintiff the sum of Thirteen hundred and twenty-five ($1,325) dollars as follows: Four hundred ($400) dollars at the time of the production to the defendants of notices of dismissal of all violations issued by the proper departments and the balance at the time of the production of cancellations of all mechanics' liens which are now on file or which may hereafter be on file up to the time of such payment.

'The parties hereto further agree to enter into a discontinuance of this action without any costs to either party as against the other, upon receiving the payments as aforesaid.

'Dated, December 24th, ...


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