
    Isaac A. Hopper’s Sons, Inc., Respondent, v. The Gerry Estates, Inc., et al., Appellants.
    
      Lien — contract — action to foreclose mechanic’s lien —■ contract to erect building for cost plus seven and one half per cent — difference as to agreed upset price.
    
    
      Hopper’s Sons, Inc., v. Gerry Estates, Inc., 222 App. Div. 4, affirmed.
    (Argued March 28, 1928;
    decided April 13, 1928.)
    Appeal from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered December 21, 1927, which reversed a judgment of Special Term entered upon the report of a referee in an action to foreclose a mechanic’s lien and directed judgment in favor of plaintiff upon new findings. The contract provided for the construction of a store and loft building according to certain plans and specifications for which the contracting defendant agreed to pay plaintiff the cost, plus seven and one-half per cent. It was asserted by plaintiff that there was an upset price agreed upon of $136,750. The contracting defendant asserted that the upset price was $106,750. It is about this difference in the amount of the upset price agreed upon that the controversy arose.
    
      I. Maurice Wormser and Abraham J. Halprin for appellants.
    
      John J. Cunneen and Joseph A. Byrne for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Cardozo, Ch. J., Pound, Crane, Andrews, Lehman, Kellogg and O’Brien, JJ.  