11 N.Y.S. 399 | N.Y. Sup. Ct. | 1890
An action was commenced by William Gaskell and others against Duncan A. Gillies and others, to enforce a lien for materials supplied to the defendant Gillies in the removal of an old wharf, and the construction of a new one at the foot of Rivington street, in the city of New York. Another action was commenced for a like object in favor of William H. Beard, and another against Duncan A. Gillies and others. These actions by consent, and on motion, were consolidated, and were afterwards tried together before the referee. By bis report he found that there was payable to Gillies, un-" der his contract for the work, the sum of $7,324.51, which was in the hands of the comptroller, to be paid as the balance of the contract price still owing by the city of New York. Against this.balance, the Hilton Timber & Lumber Company, wliich was a corporation formed under the laws of the state of Georgia, and a defendant in the action, filed with the head of the department, or bureau, having charge of the work, and with the comptroller of the city, notices in the form prescribed by section 1825 of chapter 410 of the Laws of 1882, claiming a lien upon this balance for timber furnished and delivered to tlie contractor in the performance of this work. The plaintiffs Gaskell and others filed a similar notice in their own behalf for materials in like manner furnished and used, and so did the plaintiffs Beard & Kimpland, to enforce a lien in their favor against this sum of money. The balance was insufficient to satisfy the demands existing in favor of these different claimants. The referee concluded that the Hilton Timber & Lumber Company, which was a defendant in both actions, was entitled to be first paid out of the balance, and the firm of Gaskell and others to be next paid, and the plaintiffs Beard & Kimpland to be entitled to payment after the other two demands had been discharged. This left the plaintiffs Beard & Kimpland without sufficient money applicable to the. payment of their debt, and they accordingly appealed from the judgment entered upon the report of the referee. The contractor Gillies also appealed from so much of the judgment as sustained the claim of Gaskell and others as a second lien upon the balance remaining unpaid to him for the work done under his contract.
In support of the appeal of the plaintiffs Beard & Kimpland, the position has been taken that this company was not entitled to enforce its lien against the balance due to the contractor for the reason that it was not a person, and could not be included in so much of the statute as relates to and provides for this remedy. The objection is that the law has secured the remedy only to “any person or persons who shall hereafter, as laborer, mechanic, merchant, or trader, in pursuance of or in conformity with the terms of any contract made between any person or persons and the city to perform any labor or furnish any material towards the performance or completion of any contract made with the city, on complying with the next section, shall have a lien for the value of such labor or materials, or either, upon the moneys in the control of the city, due or to grow due under said contract with said city, to the full value of such claim or demand; and these liens may be filed and become an absolute lien to the full and par value of all such work and materials, to the extent of the amount due" or to grow due on said contract, in favor of every person or persons who shall be employed or furnish materials to the person or persons with whom the said contract with the city is made, or the subcontractors,” etc. And that a corporation is not a person. This section of the law has been very broadly expressed, and its general intention evidently was to create a lien in favor of all persons performing labor or furnishing material to a contractor with the city to enable him to perform and fulfill his contract. And no reason has been evinced for making any distinction in the right to the lien between a natural and artificial person, as a corporation is recognized as being in judgment of law. The remedy was designed to be genera] without discriminating in favor of or against the party by whom the materials should be supplied, or the service should be rendered.
A further objection was taken in behalf of the plaintiffs Beard & Kimpland to the allowance of the debt of the Hilton Timber & Lumber Company, on the ground that it had exceeded in its notices the amount actually owing to it for the timber which it had delivered. The amount claimed in favor of the company was the sum of $4,716.69, while the debt as it was maintained by the evidence was for the sum of $4,221.82, which presented an overcharge in its notices amounting to $494.87. The law, by section 1825 of chapter’410 of the Laws of 1882, has required the notices which are allowed to be filed to be verified by oath or affirmation; and that the notice shall state the amount claimed, from whom it is due, or to become due, “giving the amount of the demand, after deducting all just credits and offsets,” etc. And, because the correct amount of the demand was not stated in the notices, this firm, having the third in the order of notices filed, resisted the right of the company to a recovery. It is no doubt true that the intention of the act is that a correct statement of the indebtedness or claim should be inserted in the notices. This is required not only for the protection of the contractor himself, but also for that of the subséquent creditors who have similar claims against him. The law intends that a truthful statement shall be made, and has required as much as that from the creditor making it. And, if this overcharge remained without any explanation, it might be inferred that a fraudulent augmentation of the debt was intended by the creditor which would prejudice the claims of others as justly entitled to satisfaction; and that, under the authorities, would be sufficient to defeat a recovery by the' creditor chargeable with the fraud. Lynch, v. Cronan, 6 Gray, 531; Hoffman v. Walton, 36 Mo. 613; Foster v. Schneider, 2 N. Y. Supp. 875; Hubbell v. Schreyer, 15 Abb. Pr.(N. S.) 300, 304; Reeve v. Elmendorf, 38 N. J. Law, 125; McPherson v. Walton, 42 N. J. Eq. 282, 11 Atl. Rep. 21. And the case of McMillan v. Seneca Lake, etc., Co., 5 Hun, 12, proceeded upon no departure from this strict rule; for there the excess consisted of no more than the demand for interest, which the court held might be rejected as surplusage. The case of Morgan v. Taylor, 5 N. Y. Supp. 920, seems to be a departure from the principle maintained by the other authorities; but it is not necessary to determine how far it should be followed in the disposition of these appeals,for evidence was given upon the trial directly tending to prove the fact to be that the overcharge made by the company in its notices was the result of mistakes on the part of the persons having charge of the details of its business. The evidence given to establish this fact was quite satisfactory. It explained the source and the manner through which the error had been produced; and it was proved that it arose out of no disposition to charge against the contract- or’s balance any more than was actually owing by him to the company. And the referee for that reason considered that the statute did not require so strict a construction as to produce a forfeiture of this demand as has now been insisted upon in support of the appeals; and, in following that construction, the case has proceeded no further than litigated controversies are permitted to be carried, in the correction of mistakes, and avoiding their consequences. That such a mistake will not justify the exclusion of the demand containing it was held in Harrington v. Dollman, 64 Ind. 255. And so it was in Kiel v. Carll, 51 Conn. 440. And in Odd-Fellows' Hall v. Masser, 24 Pa. St. 507, it was stated by the court that in these proceedings what was required was good faith; and that appears to have been observed by the persons in charge of the business of the company. A similar objection was considered in Allen v. Mining, etc., Co., 73 Mo. 688. There, items aggregating $1,779 were erroneously included in the demand. This was proven to have arisen out of a mistake as to the location of a furnace, and not from any intention to defraud; and it was for this reason held not to “invalidate the whole lien,