
    Richard Hoar, Respondent, v. Alexander McNeice, Appellant.
    
      Offeree's findings of fact — sustained where there is conflicting evidence.
    
    Where, in an action brought to foreclose a mechanic’s lien, there is a conflict of evidence respecting both the terms of the contract and the adequate performance of the work, the findings of the referee upon these questions will be approved where there is no preponderance of proof against them.
    Appeal by the defendant, Alexander McHeice, from a judgment of the Court of Common Pleas for the city and county of Hew York in favor of the plain tiff, entered in the office of the clerk of said court on the 9th day of January, 1895, upon the report of a referee.
    
      JF. J. O' Oorvnell. for the appellant.
    
      James Kea/rney and T. M. Tyng, for the respondent,
   Patterson, J.:

This is an action to foreclose a mechanic’s lien filed against property on the corner of Lenox avenue and One Hundred and Eighteenth street in the city of Hew York belonging to the defendant. The plaintiff was employed to make excavations for a building to be erected on the premises and to furnish materials necessary in the course of the work. It is alleged in the complaint that the work was duly performed and was of the reasonable value of §662.15; that §376.75 was paid by the defendant on account, leaving an unpaid balance of $285.40, for which the lien was filed. The defendant denies the indebtedness and claims that the plaintiff was employed to excavate all ground necessary to be excavated to a depth of five feet below the street curb, and to remove and take away all dirt, earth, stone and rubbish, and to accept $250 as full compensation. An additional contract is also pleade J by the defendant, by which he alleges that the plaintiff agreed to make the excavation a foot deeper at an agreed price of $186, making a total on both contracts of $436. It is then averred in the answer that the plaintiff has not completed his contract, in that he has failed to remove certain earth and boulders, and has not excavated to the extent he was employed to do. The issues were referred to a referee, who has reported in the plaintiff’s favor for substantially the whole amount claimed, and from the judgment entered on the report this appeal is taken.

There is a conflict of evidence respecting both the terms of the contract and the adequate performance of the work. The defendant swears that he employed the plaintiff to make all necessary excavation up to the stoop line, including that necessary for areas, and that lie pointed out to the plaintiff where the line was; that the plaintiff agreed to do this for $250. The plaintiff, on the contrary, insists that he was first employed to excavate a cellar of fixed dimensions, sixty-five by eighty-five feet, to a depth of five feet below the curb line; that he excavated seventy-five feet by eighty, and then the defendant wanted to go a foot deeper and to have a trend i dug and an areaway, and that the defendant agreed to pay additional fixed prices therefor, viz., twenty-five dollars for the trench and eighty-five cents for 237 yards of area excavation, amounting to $201.45, and the increased depth inside the building line cost $163.20. There was a small item also of five dollars for a sewer pipe furnished by the plaintiff. There is no doubt, on the evidence, bi:t that the plaintiff was employed to do all the work testified to by him, and the referee having, on conflicting testimony, reported in his favor, we do not find such preponderance of proof against the findings of fact as to the agreement under which the work was done as would justify a reversal of the judgment. The only claim of nonperformance is that the plaintiff failed to remove rubbish and stone after the excavation was made, but on this issue, also, the testimony was in conflict, and we see no just reason for departing from the conclusion reached by the referee.

Judgment affirmed with costs.

Van Brunt, P. J., Williams, O’Brien and Ingraham, JJ., concurred.

Judgment affirmed, with costs.  