49 How. Pr. 241 | New York Court of Common Pleas | 1875
This proceeding was brought by the plaintiffs, as sub-contractors and material-men, against Gr. A. Sturtzkober, contractor, and Charles A. Buddensiek, owner, to foreclose a
It appears that on the 22d day of December, 18Y1, Buddensiek executed and delivered to Sturtzkober a bond for $8,000, secured by a mortgage upon certain real estate situated at the corner of Jackson and Front streets, in this city, and that Sturtzkober immediately assigned and delivered the same to the plaintiffs. The latter thereupon satisfied a lien for $8,000,. which they had filed against certain buildings in Lexington avenue, then in process of erection, under two contracts, between Buddensiek as owner and Sturtzkober as contractor, and towards the erection of which the plaintiffs had also furnished materials. At the same time the plaintiffs discharged a lien for $2,595, which they had filed in the early part of December,. 1811, against the premises corner of Washington and Horatio streets, for the same claim for which the lien now sought to be foreclosed was filed.
It is claimed on the part of the defendant, Buddensiek, that although upon the completion of the Lexington avenue houses the contractor, Sturtzkober, would have been entitled to $15,000, yet there was nothing due him by the terms of the contracts until that time, and that inasmuch as Sturtzkober never quite finished said buildings, no money ever became due to him on the said contracts. It is, therefore, insisted that $4,000 of the $8,000 secured by the bond and mortgage, should be applied to the payment of the balance due on the Horatio street contract, which was the only money due Sturtzkober, and that as to the other $4,000, he must be deemed to have been over
As regards the right of the plaintiffs to file another notice of lien, after having discharged the one previously filed for the same
It is urged, however, that a large portion of the materials were furnished more than three months previous to the filing of the lien notice, and as there is no proof of the value of the materials furnished within the time for which the lien act authorizes a lien to be filed (L. 1863, ch. 500, § 6) the plaintiffs cannot recover. To sustain this position, we are referred to the ease of Spencer v. Barnett (35 N. Y. Rep. 94). It was there held that under the Kings county lien law, a party is not entitled to alien for materials not furnished within sixty days of the time of filing the notice of lien, although they were all furnished under one contract. But it is to be observed that the contract in that case was not an entire contract, and that the goods were furnished on a running account. The plaintiff was. to deliver the material at agreed prices until navigation closed, and after that at the market rates. It will thus be seen that the price of each article delivered was fixed by the agreement of the parties, and constituted a distinct claim for which a lien notice might have been filed. Hence, Judge Leonard, who delivered the opinion of the court, says: “ The plaintiff was at liberty to have filed his notice on the 10th of January for all' materials previously furnished, as well as on the 9th of May following, a period of four months later.” The ruling of the court of last resort, in this case, was followed in Hubbell v. Schreyer (4 Daly, 362), which was a similar case, as clearly appears from the opinion of Judge Robinson (p. 383). But in the case now before the court, the contract between the plaintiffs and Sturtzkober was an entire contract. The plaintiffs were to deliver the materials called for by the plans and specifications, and were to receive therefor the gross price or sum of $2,595, after dll had been delwered. No price was agreed on for any
There remains to be noticed yet another objection. The notice of lien, as already stated, was filed at noon on the ninth of January, 1872. On the eighth day of January, 1873, an order was obtained from a judge of this court, renewing and continuing said lien for another year, and directing the county clerk to make a new docket stating that fact. This docket was not made until the following morning—January ninth. It is claimed that the year expired on the eighth, and that, therefore, the lien had already ceased before the provisions of the statute in respect to renewing the same (§ 11) were fully complied with. It is undoubtedly true that merely obtaining the order for the continuance of the lien, within the year, is not enough. To accomplish that object, a new docket must also be made before the year expires (Stone v. Smith, 3 Daly, 213). But in this case we think both acts were .done before the expiration of that time. The law ordinarily takes no notice of portions or fractions of a day (Judd v. Fulton, 4 How. 298). It is only where the precise hour becomes material, as, for instance, in ascertaining the priority of liens, that a different rule obtains. In 'the computation of time we must consequently either include or exclude the entire day on which the plaintiffs filed their lien. How, by the mode of computing time established by the Revised Statutes, a day commences and ends at midnight (Pulling v. The People, 8 Barb. 384). As the plaintiffs did not, therefore, have the whole of the day on which the
The judgment appealed from should fie affirmed, with costs.
Daly, Ch. J., and J. F. Daly, J., concurred.
Ordered accordingly.