| New York County Courts | Feb 15, 1893
This action is brought to foreclose a mechanic’s lien on land of the defendant Lizzie S. Gordon. The defendant Gordon, being the owner of certain lots at Congers, in this county, on December 11, 1890, entered into a written contract with Butler & Thurston, a firm of builders, whereby they agreed to construct a dwelling for her upon said lots on or before April 15, 1891, for the consideration of $1,700. This agreement was, on or about August 13, 1891, superseded by a new contract, in writing, entered into between the same parties, whereby said Butler & Thurston agreed to construct said dwelling, and furnish all materials, for the like consideration, to be paid to them in three equal payments,—one when the house was “raised, framed, and inclosed;” the second, “when the plastering is all complete;” and the third, “when the house is finished and completed according to the plans and specifications.” The house was to be erected and finished on or before November 15, 1891. The work was to be done to the satisfaction, and under the direction, of one David L. Allen. The contract provided that at any time during the progress of constructing the building the owner might request any alteration of, addition to, or omission from, the contract, and that the same should in no way affect the contract, but that a reasonable valuation should be added to or deducted from the contract price, accordingly. It was also provided that should the contractors, at any time during the progress of the work, refuse or neglect to supply a sufficiency of materials or workmen, the owner should have power to provide materials and workmen, after three days’ notice, in writing, being given the contractors to finish the said work, and the expense should be deducted from the amount of the contract. The contract also contained a covenant on the part of the contractors to pay to the owner $10 for every day the said building should be incomplete after November 15, lc91. The contractors proceeded with the construction of the building under this agreement until about the
It is conceded that Butler & Thurston did not complete their contract, and abandoned the construction of the building. This I. do not think they were justified in doing, under the facts and circumstances, even if their contention be true, that Mrs. Gordon.
The plaintiff delivered some materials after Butler & Thurston ceased work, which were subsequently used in the completion of the building by Mrs. Gordon, or her agents or employes. These consisted of window sash, and some lumber, of the value of $18.40. But the same were sold and delivered to Butler & Thurston, upon their order and credit, and therefore, upon such delivery of the same, became the property of that firm, and the same rule that precludes the plaintiff from recovering for the other portion of its claim seems also to prevent a recovery for this latter sum. Nor, by using these materials, did any personal liability arise, on Mrs. Gordon’s part, to the plaintiff. The title to the same was in Butler & Thurston. Such knowledge and assent as to the using of such materials, on her part, may be sufficient to authorize a lien, but not a contract creating a personal liability. Spruck v. McRoberts, (Sup.) 19 N. Y. Supp. 129. Indeed, the plaintiff, in its
As to the claim of the defendant Hartwieke, who did the mason work, the same rules, applied, as above, to the claim of the plaintiff, are applicable to him, as a subcontractor under Butler & Thurston. There appearing to be nothing due Butler & Thurston for the labor performed and the materials furnished by them in the construction of the building, after deducting the cost incurred by Mrs. Gordon in completing the building in accordance with the contract, he cannot recover on his lien. Hartwicke’s lien was filed November 27, 1891. He has no lien for labor done or materials furnished after that date, for his notice of lien does not-cover labor to be performed, or materials to be supplied, thereafter. His answer admits that. The notice of lien must specify the materials to be furnished or labor to be performed, and whether all the work or materials for which the claim is made has been actually performed or furnished, and, if not, how much of it, etc. Chapter 342, Laws 1885, § 4. Failure to comply with this requirement is fatal to the lien. Close v. Clark, (Com. Pl. N. Y.) 9 N.Y.S. 538" court="None" date_filed="1890-04-07" href="https://app.midpage.ai/document/close-v-clark-5543945?utm_source=webapp" opinion_id="5543945">9 N. Y. Supp. 538; Foster v. Schneider, (Sup.) 2 N.Y.S. 875" court="N.Y. Sup. Ct." date_filed="1888-11-23" href="https://app.midpage.ai/document/foster-v-schneider-5495465?utm_source=webapp" opinion_id="5495465">2 N. Y. Supp. 875; Bulkley v. Kimball, (City Ct. Brook.) 19 N.Y.S. 672" court="None" date_filed="1892-06-27" href="https://app.midpage.ai/document/bulkley-v-kimball-6164346?utm_source=webapp" opinion_id="6164346">19 N. Y. Supp. 672. This subcontractor testifies that Mrs. Gordon promised to pay him his claim, while he was working for Butler & Thurston, if he would release his lien, which at that time he had filed, and which he did. Mrs. Gordon denies this. But if she did so agree it imposed no legal obligation upon her. Every special promise to answer for the debt of another is void, unless in writing, and subscribed by the promisor. 3 Rev. St. (5th Ed.) p. 221, § 2. Hartwieke, however, did some work on these premises of the owner after she had taken upon herself to complete the construction of the building. It seems to me that the evidence leads to the conclusion that such work was done for her, and with her assent, or that of her agent, and as her employe. He thus constructed the cesspool for $15; he performed extra work in plastering, $24; plastered a partition a second time, owing to a change of the same, the value of which was $10.80; and did work upon an arch, of the value of $3; making an aggregate of $52.80, and for which sum Hartwieke is entitled to personal judgment against her. Wollreich v. Fettretch, (Sup.) 4 N.Y.S. 326" court="N.Y. Sup. Ct." date_filed="1889-01-28" href="https://app.midpage.ai/document/wollreich-v-fettretch-5496032?utm_source=webapp" opinion_id="5496032">4 N. Y. Supp. 326; Thomas v. Sahagan, (Sup.) 10 N.Y.S. 874" court="N.Y. Sup. Ct." date_filed="1890-07-18" href="https://app.midpage.ai/document/thomas-v-sahagan-5499040?utm_source=webapp" opinion_id="5499040">10 N. Y. Supp. 874. He is also entitled to judgment.against the defendants Butler & Thurston for the sum of $181.20, which I find to be their indebtedness to him for his labor done and materials furnished in constructing this building, not including the $52.80 above charged against Mrs. Gordon.
The claims and liens of the defendants Frederick Meyers, Bernice Trasback, and Newton Smith, of course, must fall, for reasons already advanced. They were employes of, or furnishers of materials to, the defendant Hartwieke, and there being nothing due from the
The lien of the defendant Moore, for tinning and hardware, is ineffective for the reasons assigned as to the liens of the claimants, Hutton Bros, and Hartwicke. His lien was filed December 2, 1891, and Ms notice does not specify that he claims a lien for future labor to be performed or materials to be furnished, and, as we have seen from the authorities cited, his notice of lien is insufficient to cover such. TMs makes it unnecessary to determine the question as to whether Ms notice of lien was insufficient because of the error in the same, as to the numbers of the lots. He did, however, at the instance and employment of the owner, Mrs. Gordon, after the filing of his lien, and independently of a claim thereunder, do some tinning upon the piazza, and placing of gutters and leaders thereon, of the value of $14.62, for which sum he is entitled to a personal judgment against the defendant Gordon, less $5 paid, and against the defendants Butler & Thurston for the sum of $113.38; that appearing to be the amount that they owe him, after crediting the payment of $35.
The remaining claim for consideration is that of the defendants Vincent B. Eckerson and Asa W. Elvery, who did business as painters under the firm name of Eckerson & Elvery. They were subcontractors, under Butler & Thurston, to do the painting of the building, and furnish the materials therefor, for $100. They proceeded with their work under Butler & Thurston, but claim that $75 worth of the work was done, and materials furnished, after Butler & Thurs-ton quit. They testify that they did not complete their work until about the middle of April, 1892. They filed their lien June 9, 1892, for $100. The evidence discloses that Mrs. Gordon continued these defendants in their work of painting. She seems to have considered them in her employ, for she had a conversation with Mr. Eckerson, in wMch she testifies that they signified their willingness to accept $50 as satisfactory, and she. thereupon informed them of the source from which she was to obtain her money, and stated that she could not pay them until the house was finished, and that they said that if they were paid for their labor they were satisfied, and named $54 or $56 as the sum. TMs is undenied. My conclusion as to the rights of these defendants is that their lien, having been filed after the completion of their labor and furnishing of their materials, is valid and enforceable to the extent of the value of the
There is testimony to the effect that, in the course of the progress of the work upon this building, Mrs. Gordon, or some one representing her, visited the building, inspected the work, and in. such method or otherwise acquired knowledge or information which is sufficient to call for finding that she became personally liable to the subcontractors for work done or materials furnished, other than such as she has been charged with above. I do not understand such to be the law. The proof must go far enough to authorize a finding that it was her purpose and intention to become the employer or purchaser. But in the absence of an agreement by the owner, making himself personally liable for the claim of the subcontractor, the latter has a claim against the property no further than the amount unpaid on the contract at the time of filing his lien. Riggs v. Chapin, (City Ct. N. Y.) 7 N.Y.S. 769" court="None" date_filed="1889-04-15" href="https://app.midpage.ai/document/first-national-bank-v-cox-5543683?utm_source=webapp" opinion_id="5543683">7 N. Y. Supp. 769. In that case, ’Chief Judge McAdam, writing the opinion, says:
“But where an owner employs a contractor, and pays Mm all he contracted to pay,—not in advance, but as the work progresses; not collusively, but in good faith,—he cannot be again compelled to pay,'simply because the contractor subsequently fails to pay those he employed. The contractor has the right to employ assistants ‘without the consent of the owner.’ The nature of the work would imply that he must. These employes are selected by, and are under the exclusive control of, the contractor, who makes his own contracts with them, and superintends their performance. MechaMcs are not compelled to accept employment under Mm, neither are material men bound to credit him; and if they do they must look to Ms personal credit, or see to it that their notices of lien are filed m time to stop the payments com.rng from the owner to the contractor according to the terms of the contract; or their effort to acquire a lien on the property may prove abortive.”
The defendant Gordon, in her answer, sets up a counterclaim against Butler & Thurston, the contractors, for the $10 per day which they, by their contract, agreed to pay her for every day the said building is uncompleted after 27ovember 15, 1891, and which she claims aggregated the sum of $1,620, when the building was finally completed, about May 1, 1892. This seems to be a valid counterclaim. ■ O’Donnell v. Rosenberg, 14 Abb. Pr. (N. S.) 59; Morgan v. Stevens, 6 Abb. N. Cas. 356" court="None" date_filed="1878-06-15" href="https://app.midpage.ai/document/morgan-v-stevens-7345738?utm_source=webapp" opinion_id="7345738">6 Abb. N. C. 356-363; Pettis v. Bloomer, 21 How. Pr. 317" court="None" date_filed="1861-07-15" href="https://app.midpage.ai/document/pettis-v-bloomer-6144011?utm_source=webapp" opinion_id="6144011">21 How. Pr. 317; Ward v. Building Co., 125 N.Y. 230" court="NY" date_filed="1891-01-13" href="https://app.midpage.ai/document/ward-v-hudson-river-building-co-3629093?utm_source=webapp" opinion_id="3629093">125 N. Y. 230, 26 N. E. Rep. 256. That, however, as regards the rights of the lienors in this case, is immaterial, for the reason that I have determined there was nothing due Butler & Thurston over and above the expenses which Mrs. Gordon has paid or incurred in completing the building. It is simply, therefore, a question as to whether Mrs. Gordon is entitled to a personal judgment against Butler & Thurston for such damages. I ám not prepared at this time to dispose finally of this question.1
Judgment is accordingly directed as follows: That the complaint be dismissed on the merits as to the defendant Gordon, and the plaintiff’s lien canceled, with costs against the plaintiff, and that the plaintiff have judgment against the defendants Butler & Thurs-ton for $229.25, with interest and costs, as upon default; that the defendant Hartwicke’s lien be declared invalid, and canceled of record, and that he have personal judgment against the defendant Gordon for $52.80, with interest, but without costs to either party,. as against the other; that said Hartwicke have judgment against the defendants Butler & Thurston for $181.20, with interest and costs, as on default; that the liens of the defendants Meyers and Trasbeck are invalid and be canceled, and that they have judgment against the defendant Hartwicke for the respective amounts of $27.75 and $22.50, with interest and costs, as on default, and that the lien of the defendant Smith be canceled, and the case as to him be dismissed, without costs; that the lien of the defendant Moore-is invalid, and the same be canceled, and that he have judgment against the defendant Gordon, individually, for $14.62 and interest, but without costs, and that he have judgment against the defendants Butler & Thurston for $113.38, with interest and costs, as on default; that the defendants Eckerson & Elvery have judgment for the enforcement of their lien to the amount of $56 and interest from the filing of the same, with a trial fee of $30 costs, and upon payment thereof that their lien be canceled, and that they have judgment against the defendants Butler & Thurston for the sum of $44, with interest and costs, as upon default. The allowances of costs as above have been made in an equitable sense, and seem to accord with authority. Morgan v. Stevens, 6 Abb. N. C. 356. I will hear counsel further on settlement of the judgment.