Drall v. Gordon

101 N.Y.S. 171 | N.Y. App. Term. | 1906

Gilderslbeve, J.

This action was brought by the plaintiff, a subcontractor, to foreclose a mechanic’s lien against Gordon, the owner of the premises, Heitmuller, the contractor, and Dayton, another subcontractor and also a lienor. Hpon the trial, the plaintiff having proved his claim, the filing of the lien by him, etc., the other defendant and subcontractor, Dayton, was permitted to prove his claim, the filing of his lien, etc., and the court subsequently rendered a judgment by which it adjudged that the plaintiff Drall have a judgment against the defendants Gordon and Heitmuller and that said plaintiff had acquired a valid lien.upon the defendant Gordon’s real property. And it was also adjudged that the defendant Dayton have a judgment against said Gordon and Heitmuller, and that said Dayton had acquired a valid lien against the real property of the defendant Gordon. Said judgment also provided further that a sale of said real property of the defendant Gordon be had, that out of the proceeds thereof there should be paid the fees and expenses and the judgments aforesaid, and, in case of any deficiency arising upon such sale, that the plaintiff and Dayton have a judgment, respectively, against said Gordon and Heitmuller for such deficiency. The jurisdiction given the Municipal Court to foreclose a mechanic’s lien is set forth in subdivision 11 of section 1 of the Municipal Court Act (L. 1902, ch. 580) which reads as follows: “An action to enforce a mechanic’s lien on real property in which the court shall have power to render judgment for the sum due, and to declare the amount a valid lien against the interest of the defendant in the property described in the complaint, at the time of the filing of the lien, where the amount does not exceed five hundred dollars, exclusive of interest and costs, but said court cannot render judgment for the foreclosure and sale of the property.” The power thus given is limited to the rendering of a simple money judgment against the defendant to be enforced by an execution authorizing a sheriff to sell the right, title, and interest which the judgment-debtor had in the property at the time the lien was filed. Kotzen v. Nathanson, 33 Misc. Rep. 299; Eadie v. Waldron, 64 App. Div. 424. Ho other lienor but the plaintiff need be made a party, and the court cannot adjust the priority of liens nor permit a defendant-lienor to establish his lien in such an action; that must be done in an action brought by such lienor in person. Dayton, therefore, was not a necessary or proper party to this action and had no right as defendant herein to prove his lien. The court had no right to order a sale of the property. The testimony shows that the owner paid Heitmuller, the contractor, the full amount of the contract price, prior to the filing of the lien by the plaintiff; and the question to be determined is whether or not such payment relieves the owner from liability. In De Lorenzo v. Von Raitz, 44 App. Div. 329, it was held that an owner, who in good faith and without collusion pays the contractor the full contract price, is not liable to a subcontractor for the amount due the' principal contractor, and that the owner permitted the subcontractor to proceed with the work did not constitute a consent under the Lien Law which will enable the subcontractor to file a mechanic’s lien. The owner in the case at bar knew that the plaintiff was at work, but the plaintiff had recommended Heitmuller, the contractor, to the owner as an honest man and Heitmuller had been given the contract by the owner; and the mere fact that the plaintiff was at work carried with it no inference, even, that Heitmuller would not pay him. There is also some evidence tending to show that the plaintiff informed the agent of the owner that Heitmuller had not paid the plaintiff and that the agent stated that he would see the owner “ about it.” Whether this was before or after Gordon had paid Heitmuller does not appear, nor does it appear that the agent ever communicated the fact of plaintiff’s claim to the owner. Hnder such circumstances, it can hardly be said that the payment made to Heitmuller was not made in good faith. In the case of Kelly v. Bloomingdale, 139 N. Y. 343, cited-by the respondent, the owners by their agents had actual notice of the existence of a lien and the agent was shown copies of the notices of lien and the owners had actual knowledge of the claim before payment was made; and they were not bound, under their contract, to make any payment to the contractor until satisfied by him that the materialmen and subcontractors had been paid.

The judgment must be modified by dismissing the complaint, with costs, as to the defendant Gordon, and rendering a personal j udgment against the defendant Heitmuller, only, for the sum of twenty-eight dollars and sixty-seven cents and four dollars and seventy-two cents costs.

Dugbo and Dowling, JJ., concur.

Judgment modified by dismissing complaint, with costs, • as to defendant Gordon, and rendering a personal judgment against defendant Heitmuller, only, for twenty-eight dollars and sixty-seven cents and four dollars and seventy-two cents costs.