2 N.Y.S. 875 | N.Y. Sup. Ct. | 1888
The right of the appellants to successfully contest the disposition of the surplus moneys in controversy depends upon the fact whether the respondent, Margarethe Clemens', acquired a lien under chapter 342 of the Laws of 1885, for the value of the services rendered and the material supplied by her in performing the plumbing work in the buildings standing upon the land sold under the mortgage. She had entered into a contract with the owner •of the property to perform the plumbing in the buildings for the sum $2,400. There was but one contract made and entered into for this, object, and it included the three buildings upon the land incumbered by the mortgage. The work included in the agreement was not fully performed; but the value of ■the services and materials required to complete the contract was found by the referee to be the sum of $860, being $250 on each one of two of the houses, and $330 on the other. But it does not appear from anything in the case that the omission of the respondent to complete the work according to the contract ■deprived her of the right to recover the value of the services and materials which had already been performed and used. Ho default on her part was ■shown or found by the referee; and, as the case was 'presented in her favor, .■she was entitled to recover, by complying with the statute, for the val ue of the services and materials according to the contract price which had been rendered .and furnished under her agreement. But as the agreement appears to have been entire, and not divisible, between the buildings upon the land, the notice required to create the lien, under the language of the statute, should have in-eluded the three buildings; stating and describing the amount of work and material which had been performed under the agreement upon each one of "the buildings. That course was not taken by the respondent, but a separate notice was filed to create a lien upon each one of the buildings, and the land on which it stood. In this respect the proceeding was irregular, to say the least; for the respondent had no authority to divide or separate the contract, .and her right to compensation under it, in this manner. But this may be no more than an irregularity, inasmuch as the court would probably have the power of consolidating the three separate proceedings into one action, and thereby avoid the division of the contract into three separate subjects, when that had not been provided for by the agreement.
But a more serious difficulty is presented by the notices themselves, which were filed in the office of the county clerk, to create the lien in favor of the xespondent for her services and materials performed and used about the buildings. In her notices she has stated the nature and amount of the labor and service performed and materials furnished to be “the entire plumbing work and materials furnished in the plumbing work of the new three-story private dwelling-house, amounting to the sum of eight hundred dollars;” and it was further stated “that all the work and materials for which the claim is made has beeti actually performed or furnished.” The claim in each instance was for one-third of the entire contract, and each notice stated tho* all the work and materials for which the claim was made had been performed or furnished. This was not a truthful statement; for, as it has already been said, services "and materials of the value of $255 were still required to complete the plumbing work of each of two of the houses, and of the value of $330 to complete the other of the houses. And the referee has found that the statement made
The provisions of this section of the act are entirely plain, and may be complied with without the least difficulty. But in this case no attempt was made' to conform to them by stating the amount of work unperformed or unfinished, or that any remained in that condition in either of the buildings. The statement, on the contrary, was untruthfully made that all the work and materials, for which, the sum of $800 was claimed, had been actually performed or burnished. This was not only a clear and distinct omission to comply with what the law had directed should be observed, but, in addition to that, a materially untruthful statement was made in each of the notices, to avoid complying with this direction of the law, which was deceptive of itself, and may very well have been injurious to the other persons having claims under the statute .against this property. The order from which the appeal has been brought .should accordingly be modified by postponing the payment of the amounts .found owing to the respondent until after the liens found to have been created in favor of James H. Lee and others, the Pelham Hod-Elevating Company, and William Wilkening shall have been paid and satisfied. Neither of the other parties affected has complained of the conclusion of the referee, or «of the order directing the distribution of the surplus moneys; and as to them no change can be made in these directions. But, as to the parties appealing, •..they are entitled to be paid in the order mentioned by the referee in his report, and in the order confirming it, prior to any payment being made to the .respondent. In this respect the order should be modified, with $10 costs in favor of the appellants, and against the respondent, and also for their disbursements.
Van Brunt, P. J., concurs. Bartlett, J., concurs in the result.