
    Peter Sarubbi, Appellant, v. Triangle Construction Corporation, Respondent.
    (Action No. 2.)
   Judgment of the City Court of Yonkers reversed upon the law and the facts and a new trial granted, with costs to appellant to abide the event. While plaintiff acquiesced in the use of the various articles, except materials, by his successor in the completion of the work, he did not abandon ownership. “ Materials,” as expressed in the contract, did not include “ tools and appliances.” The latter were utilized in construction, but did not become a part of the building. The plaintiff was entitled to some recovery upon the undisputed evidence. Whether there were 400 planks, as claimed by plaintiff, or 97, as claimed by defendant, and their value, were questions of fact. The sheds had to be removed at some time, and so there will have to be considered the value of the timbers from which the sheds were constructed. Other things, such as salamanders, sand-screen, mortar tubs and wooden horses, are to be appraised at their reasonable value, and plaintiff awarded judgment therefor. Defendant was explicitly informed through its contract that these articles, the property of the plaintiff, were “ available for the completion of the work.” Defendant was, therefore, bound to make only a reasonable use thereof and be responsible for their delivery afterwards to plaintiff on his demand. This court reverses findings of fact numbered 4 and 7, and conclusions of law numbered 3,4 and 5. Kelly, P. J., Jaycox, Kelby, Young and Kapper, JJ., concur. Settle order on notice.  