2 Daly 94 | New York Court of Common Pleas | 1866
Lead Opinion
Mrs. Mack, by agreement, dated June 15,1864, employed Hammond, one of the defendants, to build a sewer. The work was finished on the 5th July following. During the period between the dates mentioned, Mrs. Mack commenced an action against Hammond and another to recover the damages sustained by her, in consequence of the removal by them of certain flagging from the premises on which the sewer was built, and insisted that she had a right to retain the money due to Hammond as an indemnity for the trespass committed. On the 5th July, 1864, it was agreed between her and Hammond, that she should pay all of the contract price but §100, which sum she was to retain as security for the payment of any judgment she might obtain in the suit alfeady mentioned. The plaintiff, on the 3d October, 1864, having performed work for the contractor, Hammond' in the construction of the sewer, filed his lien, and subsequently commenced this action to enforce it against the property of the defendant Mack. The justice rendered judgment in favor of the plaintiff, finding as conclusion of law, that no such agreement as the one mentioned to
Daly, F. J., concurred.
Concurrence Opinion
I concur with Judge Brady, that, under the provisions of the present statute, the transfer made in this case cannot affect the rights of the lienor; but I differ entirely from his views of the effect of the decision in the case of Miner v. Hoyt. I think that case is an authority for the proposition that, under the acts of 1830 and 1832, the owner would be entitled to be allowed for all demands he held against the builder at the time the attested account was served, provided they were such as might have been set off in an action brought by the builder himself. I think a careful and critical analysis of the case will show this to be the fact.
Judgment affirmed.