4 E.D. Smith 760 | New York Court of Common Pleas | 1858
By the Court.
On June 22d, 1855, the plaintiff filed a notice, pursuant to the provisions of the mechanics’ lien law, claiming a lien upon the lot and building number 47 Crosby street, in this city, for materials furnished in conformity with the original contract for the erection of such building, made between Elias Marcus, as contractor, and the defendant, as owner.
The contract bears date March 19th, 1855, and by its terms Marcus agreed to erect and finish, and provide all manner of materials and labor for the building, on or before the 15th of June following; and if at any time during the progress of the work, he should refuse or neglect to supply a sufficiency of materials or workmen, the defendant was authorized to pro
In consideration of the covenants and agreements of Marcus being strictly performed and kept, the defendant agreed to pay him the sum of $3,050, of which $1,050 was to be paid in certain installments as the building progressed, and the balance after the deduction of the materials, which was to be paid by the defendant himself, and after Marcus had completed the work according to the plans and specifications.
Under this contract Marcus proceeded to erect the building, and the materials in question were furnished between the 1st and 15th of May, upon a verbal contract between him and the plaintiff. Before the 28th of May he abandoned the work, having previously received all the installments which, by the contract, the progress of the building entitled him to.
The defendant having given him the written notice referred to, then proceeded to finish the work, and by the employment of the necessary workmen and furnishing materials, finally completed the building according to the original plans and specifications.
Marcus never offered to work there after such abandonment, and it is admitted that the defendant has actually paid for such completion and materials a sum exceeding the contract price of $3,050.
To entitle the plaintiff to recover in this action, it was necessary for him to show at the trial, that at-the time of filing his notice a payment was due or owing upon the contract, as between the defendant and Marcus, or that since a payment had become due thereon. (Sullivan v. Brewster, 1 E. D. Smith, 681.)
Has he established either of these propositions ?
As to the first: The evidence shows that nearly a month previous Marcus had abandoned the work, having before that time received all the installments which the contract and the progress of the building entitled him to.
Out settled construction of the lien law is, that, except in cases of fraud, the owner cannot, under any of its provisions, be compelled to pay any greater sum for the completion of a building than by his contract he agreed to pay. (Doughty v. Devlin, 1 E. D. Smith, 639; Linn v. O'Hara, 2 ib. 560.)
The effect of the statute is simply to take from the owner money actually owing by lien upon his contract, and apply it in payment of the labor and materials which sub-contractors or material men have contributed towards the completion and performance of the same contract. (Sullivan v. Decker, 1 E. D. Smith, 699; Doughty v. Devlin, ib. 639.)
In this case, there was no money owing by the defendant upon the contract at the time the plaintiff filed his notice claiming a lien under the statute; nor did any money subsequently become due from the defendant upon the contract under it until the building was erected.
Judgment reversed, and a new trial ordered.
