73 N.Y.S. 309 | N.Y. Sup. Ct. | 1901
The plaintiff made two separate contracts with the defendant Charles Engelhardt for the excavation of two non-con
“ The labor performed and the materials furnished and the agreed prices and value thereof are as follows:
“ To the agreed price and value for excavating two lots, one at No. 657 Tenth avenue.............. $2,803 00
“ To agreed price and value of sand furnished for building purposes ......................... 200 00
“ To agreed price and value of planks furnished.... 45 00
“ To agreed price and value of team hire in running scaffolding............................. 5 00
$3,053 00
He then, in his notice of lien, declared that the property subject to the lien was the property on Tenth avenue, and the property on Fifty-first street: An action was brought to foreclose the lien, and a complaint served which contained three counts, one for $1,503, due for excavating on the Fifty-first street property, one for sand, planks and team hire furnished to the Fifty-first street property to the value of $190, and the third for sand furnished to the Tenth avenue lot to. the value of $60. It seems to be clear that the plaintiff’s notice of lien was unauthorized by statute and void, and that he never acquired a valid lien thereby upon either lot. ' The Mechanic’s Lien Law (Laws of 1897, chap. 418, § 3) authorizes a lien for the principal and interest of the value or agreed price of labor or materials performed or furnished with the consent or at the request, of the owner “ upon the real property improved or to be improved.” In the present case the plaintiff undertook to establish a lien upon the Fifty-first street house for excavation done and materials -furnished to the Tenth avenue lot, and upon the Tenth avenue lot for materials furnished to the Fifty-first street lot. In this way he attempted to place a lien on the Fifty-first street property to the extent of $1,693, for claims which appertained only to the Tenth, avenue lot, and for which the Fifty-first street lot could not be held. Such a lien is not authorized by the statute, and since all the facts were perfectly well known to plaintiff and set out at length in his complaint his attempt to obtain an unauthorized lien must be held to have been willful and intentional. This is not a case such as has sometimes arisen of work done on contiguous lots under a single contract. These were separate contracts and the lots were far apart. If the lien was invalid no judgment can be had against the surety which gave the bond to release them. Nor can a personal judgment be granted in this action against the owner. Weyer v. Beach, 79 N. Y. 409; McDonald v. Mayor, 58 App. Div. 73. Judgment for defendants, with costs, in favor of the owner and the Surety Company.
Judgment for defendants, with costs to owner and Surety Company.