
    Jerome Rakauskas, Respondent, v. Charles F. Konecny et al., Appellants, et al., Defendants.
    Appeal by defendants Konecny from a judgment of the Supreme Court, entered in Broome County in favor of plaintiff in an action to foreclose a mechanic’s lien, and from an order of the Supreme Court at Special Term in Broome County, denying defendants’ motion to set said judgment aside. After a trial the Official Referee has granted judgment to the plaintiff, a building contractor, for a balance found to be due upon an oral contract for the construction of a house for appellants. Plaintiff-respondent contends that the oral contract was a time and material contract whereby he gave an estimate, but was to be paid for materials and labor, including his own labor. He also contends that numerous and substantial changes requiring additional work and materials were made at the instance of the appellants as the work progressed. Appellants contend that the oral contract was for the complete house at a fixed price which has been paid. They also interpose a counterclaim for failure to complete the job. The Official Referee has found that the parties agreed upon a time and material contract, not a fixed price contract or quantum, meruit arrangement, and has found that plaintiff furnished labor and materials in excess of payments made. Only a question of fact and the credibility of witnesses is involved, and the record adequately sustains the findings of the court below. It is inherent in the judgment for the plaintiff that the counterclaim was disallowed except for certain items which were offset against the amount of plaintiff’s claim. Judgment unanimously affirmed, with costs, and the order is affirmed, with $10 costs. Present — Poster, P. J., Bergan, Coon, Imrie and Zeller, JJ.
     