Opinion
October 10, 1949.
Present — Nolan, P.J., Carswell, Adel, Sneed and Wenzel, JJ. Settle order on notice.
In an action to foreclose a mechanic's lien, plaintiff appeals from a judgment, rendered after a trial before an official referee, dismissing its complaint, canceling certain liens, and directing recovery by defendant from plaintiff, on a counterclaim, of the sum of $2,120.88. Judgment modified on the law by providing that defendant recover from plaintiff the sum of $804.30, that being the balance found to be due the defendant on its counterclaim, after deducting from the amount of damage sustained by it the balance due the plaintiff on its contract, as determined by the official referee, plus the sum of $69.50, the costs as taxed. As so modified, the judgment is unanimously affirmed, without costs. Plaintiff should not have been denied the amount found to be due it on the contract, even though defendant was entitled to recover damages on account of the exaggerated lien. (Lien Law, §§ 39, 39-a, 54.) Findings of fact and conclusions of law inconsistent herewith are reversed and new findings will be made.