60 N.Y.S. 736 | N.Y. App. Div. | 1899
This action was brought to foreclose a mechanic’s lien upon certain premises owned by the defendant Yon Raitz. Upon the trial it appeared that in May, 1897, the plaintiffs and the defendant Yon
Whether in fact there was an abandonment by the plaintiffs was the main question litigated upon the trial, and concerning which evidence was given upon both sides. The trial court found that there had been an abandonment, and there is evidence to sustain the finding. It certainly is not against the weight of evidence, and, therefore, we have no right to interfere with it. (Benedict v. Arnoux, 154 N. Y. 715.)
The witness Steinman testified that the plaintiffs “ quit that work on the 18th of September, 1897, on a Saturday,” and that lie, acting for the defendant Yon Raitz, requested them to continue the work, which they did! not do, and that." plaintiffs’ failure to continue the work delayed the progress of the building six or seven months.” Yon Raitz testified tliat“De Loronzo left the job on September
The plaintiffs having abandoned the contract without just cause, in no view of the case could they have a lien for anything more than the difference between the amount unpaid when the lien was filed and the cost of completing the work. (Van Clief v. Van Vechten, 130 N. Y. 571.) Indeed, it is difficult to see, having abandoned their contract, and there being no provision in it for the completion of the work by the owner, how the plaintiffs could acquire alien, no matter how much was due them. It is well settled that where a contractor abandons his contract and refuses to go on with the work, and there is no provisión in the contract for its completion by the owner, nothing remains unpaid within the meaning of the Mechanics’ Lien Law, to which a lien can attach. (Larkin v. McMullin, 120 N. Y. 206.)
At the time the plaintiffs abandoned the contract Yon Raitz had paid to them the sum of $1,145, and he ■ thereafter paid for the completion of the work which the plaintiffs had contracted to do the sum of $743, making in all $1,888, or an overpayment to the plaintiffs of $214.84, for which the court properly awarded judgment against them and in favor of Yon Raitz.
We think the letter referred to by the appellants was properly excluded. It was not written until after the lien had been filed and the rights of the parties, so far as this action is concerned, had then become fixed, and could not thereafter be changed by the act of one party without the consent of the other.
The defendant Bradley filed a lien for work performed by him in making certain excavations on the same premises, and on that account he was made a defendant, and the validity of his lien was also litigated at the trial. The learned trial justice held that his alleged lien was null and void, and directed that the same be canceled and discharged of record, and Bradley has appealed from that portion of the judgment.
As to Bradley’s claim, it appeared upon the trial that Yon Raitz
Upon both branches of the case we are satisfied that the questions presented were properly disposed of by the trial court, and for that reason the judgment must be affirmed, with, costs.
Van Brunt,, P. J., Barrett, Rumsey and Ingraham, JJ., concurred.
Judgment affirmed, with costs.