George Crawford et al., Appellants, v. Owen O'Connor et al., Respondents

George Crawford et al., Appellants, v. Owen O’Connor et al., Respondents. (Argued March 20, 1878; decided April 2, 1878.) This was an action to foreclose a mechanic’s lien for materials furnished a contractor. , The referee found that at the time of filing the notice of lien there was due and unpaid from defendants to the contractor more than the amount of plaintiffs’ claim, and directed judgment therefor. Defendants produced papers, signed by the contractor, showing payment in full. The contractor, however, testified that this was not the fact; that he was paid some money, and that the amounts due plaintiffs and others were counted in to make up the balance, with a secret understanding between him and defendants that they should contest these claims. The General Term reversed the judgment upon the ground that plaintiffs’ right to recover depended on their establishing fraud, and there was no finding to that effect. Held, that a finding of fraud was not necessary, as it did not alter the fact that there was, in truth, an amount due and unpaid, and this was sufficient to sustain the judgment; that the fraud simply concealed the truth, and being exposed, the fact was revealed. D. M. Porter for appellants. C. C. Egan for respondents. [MAJORITY — Per Curiam] Per Curiam opinion for reversal of order granting a new trial, and for affirmance of judgment, entered on report of referee. All concur. Order reversed and judgment affirmed.