61 N.Y.S. 305 | N.Y. App. Div. | 1899
The complaint -was sufficient to state a cause of action for the foreclosure of plaintiff's lien. The objections thereto are extremely technical, and, if it were necessary, we might regard them as amended upon this appeal in accordance with the proof, for. the- purpose of supporting the judgment. The fact that the plaintiff furnished the material which is the subject of the lien to the contractor engaged in the construction of the house for the defendant Souther is not the subject of dispute, nor is the validity of the lien in any wise attacked. The real point in issue between the parties was as to whether the defendant had paid to.- the contractor the contract price for the construction of the building before the plaintiff filed his lien. We may assume, for present purposes, that the evidence was insufficient upon which to find that anything remained due and unpaid from the defendant Souther to the contractor at the time when the lien was filed, if the mortgage which was to be given is to be regarded as a- payment. The court below has found that the mortgage was given, not as payment of part of the contract price, but as security, and such finding has support in the evidence. While the contract is not set out in the pleadings, nor was it proved upon the trial, yet the agent of the