City Structural Steel Corp., Appellant, v. Angelo Martone, Respondent, 20 A.D.2d 922

In an action to recover balances allegedly due under two building contracts, together with the amount allegedly due for “ extras,” in which defendant interposed a counterclaim for “ back charges ” — being sums which defendant allegedly expended by reason of the plaintiff’s failure to properly complete said contracts, plaintiff appeals from a judgment of the Supreme Court, ICings County, entered December 10, 1962 upon the court’s decision after a non jury trial, in its favor for $83.60. Plaintiff claims that the amount of the judgment is inadequate.

Judgment modified on the law and the facts by increasing to $2,974.17 the amount of plaintiff’s recovery. As so modified, the judgment is affirmed, without costs. Findings of fact implicit in the court’s decision which may be inconsistent herewith are reversed, and new findings are made as indicated herein. In our opinion, the claim for extra work is precluded by the contract provision that written authorization was a prerequisite to payment for such work.

In addition, both the plaintiff’s claims for “ extras ” and the defendant’s counterclaim for “ back charges ” must be disallowed; they constitute nothing more than arbitrary sums asserted by the parties without prima facie proof of reasonable value and necessity. Under the circumstances, plaintiff is entitled to recover only the contract price, less the payments made on account. Ughetta, Acting P. J., Kleinfeld, Christ, Hill and Rabin, JJ., concur.