97 N.Y.S. 280 | N.Y. App. Div. | 1905
The defendant Burke was contractor for the erection of a school building for the city of New York. He contracted with the plaintiff to do all metal work upop the building, exterior and interior, including a gravel roof, at a stipulated price, the work to be performed in conjunction with other contractors as their work progressed. Payments were to be made upon the completion of certain parts. The work specified as to the second payment was first completed, ands that payment was made before any controversy arose.
What is denominated as the first payment of $1,600 wás to be made “ when all cornices, leaders, leader heads, gutters, flashing and gravel roof is finished.” Certain of the gutters were of copp'er and plaintiff had substantially laid them when it was discovered that the wooden frame upon which they'were laid, which was furnished by defendant Burke, was wrong as to grade, necessitating a tearing up and relaying. Controversy arose as to who should bear, the expense of "this, the plaintiff claiming that it was no. fault of his, and the defendant Burke insisting that the plaintiff should bear the expense of the change. The result was an abandonment by the plaintiff of his contract, and the. filing by him on the 23d of April, 1904, of a mechanic’s lien for upwards of $4,000 for work performed and materials furnished at their qua/ntum meruit value. This action is brought to foreclose that lien, and the trial resulted in a judgment for the defendants from which the plaintiff appeals.
The difficulty is with the complaint and the issue upon which the action was tried. The plaintiff did not put the abandonment of hié contract upon the refusal of the defendant Burke to bear the expense of relaying the copper gutter, which was wrong because of the defendant’s own mistake, and ask the value of that part of his
Notwithstanding the injunction of the Legislature that the Mechanics’ Lien. Law shall be liberally construed to secure its beneficial purposes (Laws of 1897, chap. 418, § 22), the courts have been compelled to say that the burden was upon "the "lienor to show that ■there was a sum due, or to become due, upon which his lien might attach (Brainard v. County of Kings, 155 N. Y. 538), and that he must have substantially performed in order to be entitled to a. lien (Murphy v. Stickley Simonds Co., 82 Hun, 158 ; affd., 152 N. Y. 626), and that in an action, to foreclose his lien the trial should be conducted and a conclusion reached seeumdum allegata etprobata. (Beecher v. Schuback, 1 App. Div. 359 ; affd., 158 N. Y. 687 ; Schanier v. Nathan, 31 App. Div. 225.)
The plaintiff alleged that he so performed all the conditions of , his contract, except so far as they were waived or prevented by the defendant Burke, so as to entitle him to the first payment in'controversy-as well as the second one which he had received. The
The court properly tried the issues presented by the pleadings, and the conclusion .which he reached was • amply sustained by the proofs, and the judgment must be affirmed, with posts.
O’Brien, P. J., Patterson, McLaughlin and Laughlin, JJ., concurred.
Judgment affirmed, with costs.