176 Misc. 320 | N.Y. Sup. Ct. | 1941
This motion is founded upon facts claimed to be established prima facie by documentary evidence, and, therefore, is maintainable by the defendant. (Levine v. Behn, 282 N. Y. 120; Lederer v. Wise Shoe Co., 276 id. 459.)
Plaintiff seeks to recover for gasoline, lubricating oil, kerosene and alcohol sold and delivered to defendant Jodomar, Inc., and used by it in the reconstruction of a bridge over the Barge Canal in the performance of a contract with the State of New York. The fuel and lubricants thus supplied found no permanent place in the completed structure, but were used in the contractor’s con
The courts have had occasion to rule upon this question in connection with the foreclosure of mechanics’ hens. (Shultz v. Quereau Co., 210 N. Y. 257; Wilson v. Moon, 240 App. Div. [Fourth Dept.] 440; Lackawanna Steel Constr. Co. v. Longacre E. & C. Co., 151 Misc. 17, 29.) In Shultz v. Quereau (supra) the court quoted from Sampson Co. v. Commonwealth (202 Mass. 326; 88 N. E. 911): “We are of opinion that there is a plain distinction between materials so used [fuel to generate power on a construction job] and materials that enter directly into the work and become a part of it,” otherwise it might be argued that “ coal that is used in portable engines, oil that is used in the lubrication of building machinery, and even food which is eaten by laborers, all are consumed in the construction of the building and hence are lienable materials. But all these things seem quite plainly distinguishable. They are at least one step further removed from the actual work of construction. They have neither physical contact nor immediate connection with the structure at any time. They are used only to facilitate and make possible the operation of tools, machinery, or men, which in their turn act upon the structure. The authorities
That section demonstrates that its phrase “ materials employed and used in carrying out the contract ” was intended by the Legislature to include only materials for which mechanics’ hens can be • filed. Otherwise it would not state that in order to secure any rights and benefits conferred by the act a materialman shall file and enforce a mechanic’s hen pursuant to the provisions of the Lien Law. The Court of Appeals having held that gasoline and oil are not lienable (Shultz v. Quereau, supra), it follows that payment therefor is not guaranteed by bonds required under section 137 of the State Finance Law.
There is a necessary practical basis for the ruling in the Shultz case hmiting the nature of materials that can become the subject of mechanics’ hens. The courts in different States have disagreed concerning where the line of demarcation is to be' drawn defining what is lienable (See Annotation, 91 A. L. R. 1027, at p. 1028), but that it must be drawn somewhere is clear, and plaintiff concedes that the Shultz case is the law of this State. The same reasoning which excludes gasoline and oil and other fuels and lubricants from mechanics’ liens applies equally to materialmen’s bonds. (Wilson v. Moon, supra, p. 443.)
On behalf of plaintiff it has been argued that the bond that was written in this case is broader in scope than was necessary to comply with section 137 of the State Finance Law. This argument has little foundation in fact. The entire language of the instrument, except the recitals, is taken verbatim from section 137. That includes the words which plaintiff contends cover its gasoline and other products, viz., “ materials employed and used in carrying out the contract.” When these words of section 137 were incorporated into the bond the object was to guarantee payment for what the statute required. It is not conceivable that the parties intended to use the language of the statute with an altered meaning. The Legislature has indicated that it intended to denote such materials only as are lienable. “ The right of the Legislature to define the meaning of particular phrases employed in a statute or the duty of the courts to recognize definitions thus established has never been seriously questioned.” (People ex rel. Champlin v. Gray, 185 N. Y. 196, 200.) For present purposes it does not matter that the proviso that mechanics’ hens must be filed and enforced in
The motion of defendant Massachusetts Bonding and Insurance Company for summary judgment dismissing the complaint against it is granted, with costs of the action and of this motion.