16 A.D.2d 1009 | N.Y. App. Div. | 1962
Appeal by certain of the defendants from an order of the Supreme Court at Special Term which granted plaintiff’s motion for summary judgment in an action to foreclose a purported mechanic’s lien filed in connection with a public improvement, and denied defendants-appellants’ motion for summary judgment dismissing the complaint; appeal being taken, also, from the judgment entered on said order. The issue is as to the validity of plaintiff’s lien for the price of gravel which he sold, in place on his land, to defendant Servidone Construction Corporation which, in turn, delivered it to the site of the work; the determination of that issue depending on whether Servidone was a subcontractor of the prime contractors or merely their materialman. (See Lien Law, § 2 [Definitions], subd. 9 [Contractor], subd. 10 [Subcontractor], subd. 12 [Materialman].) Prom Item Ho. 2EP of the prime contract and from Item 2EC of the State’s “ Public Works Specifications, January 2, 1951”, referred to by the contract and quoted in appellants’ brief without objection or contradiction, but not shown to have been before the Special Term it could be found that the prime contractors were obligated to furnish and place “ selected fill, not necessarily borrow ” to required lines and grades and to “compact, the material” at such location; and that, in the case of selected borrow at least, payment would be made for the material as “measured in its original position” and that the “unit price bid [should] include the cost of furnishing all labor, materials and equipment necessary to complete the work”. We give no evidentiary effect to the specifications thus cited but deem it proper to refer to the provisions thereof which have been quoted as pointing up the deficiency in the proof necessary to a proper determination and, further, as indicative of the legal issues which might arise upon a complete factual presentation. The prime contractors’ agreement with Servidone was in the form of a letter whereby Servidone agreed “ to furnish item 2EF for the east abutment ” of the bridge, Servidone to “load, transport and dump the material at the top of