1 Daly 336 | New York Court of Common Pleas | 1863
By the Court.
The plaintiffs, on the 18th of June, 1860, made an agreement with the defendants, Westervelt & Camp, who were the contractors, to perform certain work towards the erection of two houses belonging to the defendant Sturgis. On or about the 2nd of October, 1861, Westervelt & Gamp failed and made an assignment. On the 5th of October, 1861, the plaintiffs filed a lien claiming one hundred dollars to be due, this being a part only of their contract price, •‘which was two hundred and fifty dollars. The assignee of Westervelt & Camp, as such, finished the buildings under the original contract, but the plaintiffs made an agreement with him to complete their work, which'was finished as contemplated by their agreement with Westervelt & Camp, At the time the lien was filed there was nothing due to the contractors, but the defendant Sturgis consented to the assignment and retained.ultimately the sum of one hundred dollars as security against the lien. Can the plaintiffs recover on these facts? The Justice thought not, and dismissed their complaint. He was in error. The statute of 1851 provides for a lien to be gained by filing a notice, etc,, after the performance of the labor or the furnishing of the materials (per Woodruff, J., in Jacques v. Morris, 2 E. D. Smith, 643,) but the plaintiffs were prevented from performing their contract "with Westervelt & Camp by the failure of the .latter.
The contract between them being an entirety, and the work not having been done, no lien could have been acquired on the 5th of October, 1861, unless the contract had ceased to continue by some act of the parties or by operation of law. The effect of the failure of the contractors and assignment by them was to prevent the plaintiffs from proceeding with their work, and the contract was at an end. (See Belshaw v. Colie, 1 E. D. Smith, 213.) And in this respect this case is analogous to Dennistoun v. McAllister, (4 E. D. Smith, 723,) in which the plaintiff recovered against the owner the amount of his claim.
For the reasons assigned, I think the lien was valid when filed. The objections to the form of the lien were not well taken (Lutz v. Ey, 3 E. D. Smith, 621.)
The judgment should be reversed.