Felgenhauer v. Haas

123 A.D. 75 | N.Y. App. Div. | 1907

The following is the opinion delivered at Special Term:

Burr, J.:

In August, 1902, the plaintiffs entered into an agreement with the defendant Frederick Y. Haas to furnish and set in connection with the erection of a brick building on the south side of. Willoughby avenue, forty eight iron beams, 'four templates an£ fourteen iron columns. The price to he paid for' the material and labor was $2,000.

The furnishing of the material was the important part of the contract. The labor to be performed in connection therewith was comparatively insignificant. The plaintiffs furnished all the materials, set all the templates and twenty-five of the iron beams. Twenty-three cE the beams and all of the columns were not set because the defendant Haas did not progress with the construction of the building so as to make it possible for the plaintiffs to do such work. Subsequently Haas abandoned the performance of the work, and on the 4th day of December, 1902, the plaintiffs filed a notice of lien.

In January, 1903, the premises were conveyed to the defendant Bertha Volkening, who took the property charged with notice of lien and of the contents of the paper by which the lien was created. Subsequently she completed the building. She alone defends this action brought for the foreclosure of the plaintiffs’ lien. The defense is based upon the invalidity of the lien. First, because of the indeiiniteness of the notice, and, second, because of untruthful statements contained in it.

The defendant- claims that the notice of lien is defective because it does not state separately the value of the materials furnished and labor performed. This is not necessary. (Martin v. Gavigan Co., 107 App. Div. 279; Clarke v. Heylman, 80 id. 572.)

In a case like this, where the materials and labor were all included in one contract, for which a gross sum was to be paid, it might be difficult to so specify.

The defendant claims that the notice of lien is defective because it omits to state how much of the material has been already furnished, and how much was to be furnished, and how much of the labor had been performed, and how much was yet -to be performed.

The notice contains this language: “ The labor performed and to be performed, and the material furnished and to be furnished, consists of iron material and labor necessary for the construction' and erection thereof.” If this was all that was contained in the notice I should feel that the objection was well taken. (Finn v. Smith, 186 N. Y. 465.) But, after the language above quoted, these words appear: “ Actually used and employed in the erection of buildings upon the plot of land below described, and the agreed price and value thereof is Two thousand dollars, and the amount unpaid to' the lienor for such labor and materials is Two thousand dollars.”

If the material, prior to the date of the filing of the notice, had been actually used and the labor actually employed, and the amount unpaid was the same as the contract price, it would follow that there was nothing still to be done in the furnishing of either materials or-the performance of labor. The words in the alternative in the first part of the sentence might be eliminated and then the notice would read as follows: “ The labor performed and the materials furnished consists of iron material and labor necessary for the construction and erection thereof .actually used and employed in the erection of buildings upon the plot of land below' described.” Ho criticism could be successfully made upon a notice in that form; and that this construction is proper is sustained by authority. (Martin v. Gavigan, Co., supra.) The objection to the notice of lien for indefiniteness cannot be sustained.

The defendant, further criticises the notice of lien for 'untruthfulness. Although the notice of lien claimed that all of the material had been furnished and all of the labor performed, it appeared that there was still a small amount of labor to be done in connection with the setting of some of these beams and of all of the columns-. The plaintiffs testified that the entire cost of this work unperformed would hot exceed the sum of $91. I have concluded from the evidence-that this is a low estimate, and that $120 would represent the Cost- of this additional labor. The notice of lien was, therefore, inaccurate in this respect. But the fact that the notice was inaccurate is not enough .to destroy its validity. Where á party to a building contract states in a. notice to create a lien that he has performed it, this means' a substantial and not necessarily a literal per-' formance. (Ringle v. Wallis Iron Works, 149 N. Y. 439.) That this «contract was substantially performed is. established by the evidence. If • a party willfully and intentionally grossly exaggerates tlié amount due so that the court should conclude that it was done for the purpose of enforcing a false and fictitious' demand, such exaggeration might' be sufficient, to destroy the validity of' the notice of lien. (Aeschlimann v. Presbyterian Hospital, 165 N. Y. 296.), But a mere innoéent mistake, not a willfully and intentionally false-statement, does not have this effect. (American Mortgage Co. v. Butler, 36 Misc. Rep. 253.) There is no evidence in this case of any bad faith on the part of the lienor nor any willful intention to present, and attempt to enforce an exaggerated claim against the property. In view of the fact that the labor yet to be performed wafe-comparatively insignificant and that the lienor might and probably would, upon request, have performed that labor, I do not think that- a mere error in stating that the whole $2,000 was due, when according to his. claim there was only $1,909 due, would justify the court in withholding from him the right to enforce his lien against the premises described in the notice thereof. .'

There must be judgment for the plaintiffs for the sum of $1,880, with interest from the 4th day of December, 1903, and for a foreclosure of the plaintiffs’ lien against the premises described therein for that amount, with the costs of this action.