Opinion
August 13, 1959
Appellants appeal from two judgments of the Albany County Court entered summarily upon affidavits in an action to foreclose mechanic's liens. Appellants contracted with one Tamm, a contractor, to build a house for them according to detailed specifications and for a fixed sum. The liens were filed, one for concrete work and the other for materials furnished to Tamm. The motion papers show that Tamm claims he presented a requisition for $1,750 to appellants on November 1, 1954, which is denied by appellants. At some time the contract was cancelled and Tamm executed a general release to appellants. Appellants rely upon section 4 Lien of the Lien Law which, in substance, provides that if labor or materials are furnished to a contractor the lien shall not be for a sum greater than the sum earned and unpaid on the contract at the time of filing. Respondents challenge the good faith of the release and charge collusion between appellants and Tamm, and in effect claim that there is still money due to Tamm. This briefly outlined situation presents questions of fact, and even questions of fact between Tamm and appellants could well have an effect upon the rights of respondents as lienors. While the result reached may well be right, it seems that the County Court has, in effect, weighed the credibility of affidavits and decided disputes upon affidavits, which may not be done. Judgments reversed, with one bill of costs, and the matter remitted for trial. Coon, J.P., Gibson, Herlihy and Reynolds, JJ., concur.