
    Frank D’Amore, Appellant, v. The Swedish Augustana Home for the Aged and Others, Respondents.
   Judgment reversed upon the law and the facts, with costs, and judgment directed for plaintiff for $3,500, with interest and costs. The learned official referee erred in construing the contract so as to include the work on the old existing brick building owned by the defendant home, in that the evidence discloses that this building was not on the southwest corner of Sixtieth street, but rather on the southerly side of Sixtieth street, forty-five feet west of Seventeenth avenue, and, therefore, not within the description of the premises at which the services were to be performed and the materials furnished. The evidence also discloses a practical construction of this contract by defendant Head-craft Construction Corporation, in that it paid him extra for services performed and materials furnished in connection with the old brick building, and also paid him $800 on account of the contract at a time when it had knowledge of plaintiff’s claim that no work on the old brick building was included in his contract. Findings of fact and conclusions of law inconsistent herewith are reversed and appropriate findings and conclusions will be made. Lazansky, P. J., Rich, Young, Carswell and Scudder, JJ., concur. Settle order on notice.  