30 A.D. 326 | N.Y. App. Div. | 1898
The owner of the property against which the plaintiff seeks to enforce a mechanic’s lien appeals from a judgment of foreclosure and sale. The work was done upon premises on Henry street in Brooklyn, under a written contract which provided that the owner should pay the sum of $3,825 therefor as soon after the completion of the work as she could raise' a first mortgage on the premises for a sufficient sum of money to pay a then existing mortgage, and the cost of the improvements contemplated by the agreement, together with the expenses of procuring such first mortgage.. The contract further provided for the payment- of six per cent interest on $3,825 to the plaintiff, from the date of the completion of the work to the date when the principal sum should be paid, and declared that said principal sum and interest should be secured by the bond and mortgage of the owner.
The particular property on which the work was to be done was not indicatéd in the body of the contract, .but at the beginning of the specifications attached thereto it was described as Ho. 379 Henry street. Further on, however, the specifications provided for building up “the door opening in party wall between Hos. 379 and 381.”
The contract was dated June 5, 1895, and required that the work should be completed on September 1,1895. It was not in fact finished until ten weeks later, but the referee excuses the plaintiff for the delay on account of the interference of the 'defendant with the due progress of the alterations. The referee finds that the plaintiff substantially performed the contract on his part, although making a small deduction from his claim-; and he also allows the plaintiff a small
As to the lien, the referee reports as follows: “ When plaintiff had completed his contract, plaintiff expressed to the defendant, Catharine . A. C. G. Eehfeldt, a willingness to accept a mortgage upon the premises hereinbefore described for the amount of his claim, together with the bond ■ of Mrs. Eehfeldt, to be secured by said mortgage, as was provided by his contract with Mrs. Eehfeldt he was' to take in satisfaction of his claim for his work and material, but Mrs. Behfeldt refused to execute or deliver them to him, and the plaintiff thereupon became entitled to be paid in cash for his said work and materials; and not being paid therefor did, on the 28th day of December, 1895, within.ninety days after the completion of his contract, file a notice of lien in writing with the clerk of Kings county, claiming under the statute in such case made and provided, a lien upon . the premises hereinbefore described, for the amount due to him for the work performed and materials furnished by him in making alterations on the building on said premises.”
The lien thus filed was against the lot comprising the street Eos. Sí9 and 381 Henry street.
The language which I have cproted from his decision indicates that the learned referee supposed that the plaintiff’s request to the defendant to execute. the mortgage in satisfaction of his claim under the contract was made before he filed his notice of lien. This, however, appears to be a mistake. The notice of lien was filed on December 28, 1895, while the plaintiff hiinself fixes February 21, 1896, as the date when he asked Mrs. Eehfeldt to execute the bond and mortgage, and when she declined to do so. Mr. Firth adds: “ On that occasion I offered to make her a loan on her property, which I had altered, sufficient to take up The first mortgage that was on the property, and the amount of my contract and extras. This she refused.” Thereupon the present suit to foreclose the lien was commenced on March 6, .1896.
The appellant insists that the contract between the parties precluded tire plaintiff from filing a mechanic’s lien, and that his .appropriate remedy was a suit for specific performance. The provisions as to the giving of the mortgage and the manner of payment are .declared to be entirely inconsistent with the assertion of a lien, and
The position of the appellant in this respect is sustained to some extent by authority elsewhere, but not, as it seems to me, by the decisions in this State. The strongest case in the appellant’s favor appears to be Weaver & Pennock v. Demuth (40 N. J. Law, 238) where the Hew Jersey Supreme Court expressed the opinion that a stipulation in a building contract for payment by means of a mortgage operated as a waiver of the statutory lien. It was conceded by counsel in that case that the right to enforce the mechanic’s lien would be lost if the agreement to give the mortgage had been carried out, but the court was asked to hold that the contractor might resort to the lien provided for by the statute, inasmuch as the promised mortgage had not been given. To this the court answered- that the case stood on the contract made between the parties, and declared that the remedy for its breach must be sought within and not outside of the agreement. “ The contractor,” said Souddek, J., “ must obtain the lien promised, or its equivalent in damages, and not the lien by statute which he has constructively agreed to abandon without any condition or reservation.”
Ho other case cited by the appellant goes as far as this in asserting the doctrine of waiver. In Willison v. Douglas (66 Md. 99) the defendant agreed to pay in cash and by giving a mortgage. He made the cash payments and offered to give the- mortgage; and under these circumstances the court-held that “ the plaintiff should be estopped in the further prosecution of his claim for lien upon the property.” In other words, the offer to pay in the manner stipulated authorized the court to treat the agreement as an executed contract which prevented the enforcement of the mechanic’s lien. ■■
In Barrows v. Baughman (9 Mich. 213) the builder’s contract provided that payment should be made within five years after the work was done, and should be secured by a first mortgage on the premises ; and it was held that the statute of Michigan did hot give a mechanic’s lien 'for the purpose of compelling the debtor to fur
In Grant v. Strong (18 Wall. 623) the acts of the parties were so ¡inconsistent with the idea of a mechanic’s lien that the Supreme Court of the United States declared that no such lien ever attached. Before bringing suit to establish a lien the builder had givén up real estate security for payment for his work and taken a mere promissory note under circumstances which convinced the court that he always had relied for his pay upon some other security than a mechanic’s lien.
The principal Hew York case relied upon by the appellant is Dowdney v. McCullom (59 N. Y. 357). There the contractor’s work was to be paid for in part by the conveyance of a lot, and the Court of Appeals held that the plaintiff could not have judgment in his mechanic’s lien suit for the value of the lot thus agreed to be-conveyed because he had not made any demand for the deed or shown any inability of the defendant to make the conveyance. The opinion clearly indicates that the only reason fpr refusing to enforce the plaintiff’s lien was his failure to show that the defendant was in default. The right to file and enforce a lien where payment is to ' be made otherwise than in money is distinctly asserted, and it is evident that if the defendant’s default in not having made the conveyance had been established the plaintiff would have recovered judgment in the mechanic’s lien suit for the value of the .lot.
Hone of these cases except that in Hew Jersey ( Weaver & Pennock v. Demuth, supra) would warrant the conclusion that the plaintiff was without remedy in the present action. On the other
It is argued that the mortgage which the plaintiff proposed to take was different from the kind of mortgage specified in the contract, being payable in. six months ; but the contract says nothing about the term of the mortgage, nor does it appear that any objection was ever made to the proposed transaction on this ground.
In view of the somewhat contradictory judicial utterances on the .subject of waiver, as applied to mechanics’ liens, it has seemed proper to discuss, at considerable length, the. first point presented in the brief for the appellant. The other points can be disposed of more readily. We are not called upon to review any questions of fact. The case, -on appeal, sets out only so much of the evidence as is necessary to present such questions of law as are raised by the appellant’s exceptions, and the record contains an express waiver of all objection or exception to the. decision of the referee so far as the weight Or sufficiency of the evidence is .concerned. This leaves the appellant unable to dispute the correctness of' liis conclusion,- that the contract was substantially performed by the plaintiff upon premises constituting in reality only one city lot.
The only other matter requiring consideration upon this appeal is the action of the referee in taking the testimony of the appellant’s
The judgment should be affirmed.
All concurred, except Cullen, J., absent.
Judgment affirmed, with costs.