Antonio Pasquale and Another, Copartners, Trading as Antonio Pasquale & Son, Plaintiffs, v. The State of New York and Harry R. Austin, Defendants; Patrick T. Coulter, Respondent, and Chas. Shutrump & Sons Co., Appellant

Antonio Pasquale and Another, Copartners, Trading as Antonio Pasquale & Son, Plaintiffs, v. The State of New York and Harry R. Austin, Defendants; Patrick T. Coulter, Respondent, and Chas. Shutrump & Sons Co., Appellant. [MAJORITY] — Defendant Shutrump & Sons Co., have appealed from a judgment in favor of respondent, Coulter, in the sum of $297.98. Defendant had contracts with the State of New York for the construction of a State armory and garage at Binghamton. Respondent was employed by defendant at times as a carpenter and at other times as a laborer. His wages as a carpenter were at the rate of eighty-seven and one-half cents an hour, while his pay as a laborer was at the rate of forty cents per hour. He filed a lien against moneys due and to become due to defendant from the State of New York in connection with defendant’s contracts. In an action to foreclose the lien respondent claimed compensation for the full period during which he was employed at the rate of eighty-seven and one-half cents per hour. The action was tried before an official referee who found in favor of respondent. The evidence conclusively establishes that defendant has paid respondent in full. The judgment in favor of respondent is reversed on the law and facts and his complaint dismissed with costs and the notice of lien filed by him is canceled. The court hereby reverses findings of fact Nos. 4 and 7 contained in the referee’s decision. The court also reverses findings of fact contained in the conclusions of law Nos. 1, 2 and 3, in such decision and the court hereby disapproves of such conclusions of law. The court also finds that respondent Coulter has been fully paid for all services which he rendered to defendant. Hill, P. J., Rhodes, MeNamee, Bliss and Heffernan, JJ., concur. [See 251 App. Div. 753.]