209 A.D. 676 | N.Y. App. Div. | 1924
The plaintiff originally began this action simply to foreclose a mechanic’s lien, serving the ordinary complaint in such an action. Later it served an amended complaint in which it combined with allegations appropriate to an action to foreclose a mechanic’s lien, allegations in relation to damages which plaintiff claimed to have suffered because it was not permitted to complete its contract, and asked that it be adjudged that plaintiff have a lien for an amount greatly in excess of the amount claimed to be due the plaintiff in the notice of lien filed by it. The theory upon which the Lien Law grants a lien is that the lienor by his labor or materials or both has added to the value of the property upon which a lien is claimed. Damages caused by a breach of the building contract add nothing to the value of the premises upon which the building is being created and are not within the purview of the Lien Law. Apparently the court proceeded upon the correct
The only finding that shows how the court arrived at that amount reads as follows:
“ 5. That, in pursuant of said agreement, plaintiff entered upon the performance of its obligations thereunder and performed all work and furnished all materials necessary to entitle it to receive the second payment of $7,100, specified in the agreement, and has performed all conditions necessary by it to be performed, but defendant, the Colonial Homes Company, has failed to make payments as specified and as certified by the architect, save that there has been paid to the plaintiff the. sum of $6,488, leaving a balance now due and owing to plaintiff from defendant amounting to the sum of $612, no part of which has been paid.”
As this finding indicates, the whole controversy related to the second payment on account of the contract, $7,100. The plaintiff’s president testified to the receipt of payments amounting to $7,803.22. Plaintiff’s counsel after eliciting this testimony stated that the payments amounted to $6,803.22 and the defendants’ counsel said' the addition was correct. The defendants’ attorneys apparently discovered this error later, as they excepted to the finding above . quoted and asked the court to find the items of payment as testified to by plaintiff’s president and also that the total amount paid exceeded the amount due on the contract at its then stage of completion by the sum of $703.22 and excepted to the court’s refusal so to find. Upon this appeal the plaintiff’s position is not in all respects entirely clear, but it does not contend that this error in addition was not made. It, however, seeks to sustain its judgment by claiming that it performed work not covered by the second payment. But the futility of that claim is shown by the fact that the court did not so find, and the plaintiff proposed no such finding. It is, therefore, quite clear that practically all plaintiff did was to complete the buildings to the point where under the contract it was entitled to the second payment of $7,100.
The defendants upon this appeal claim not only that the judgment in favor of the plaintiff should be reversed, but also that the
The judgment should be reversed on the facts, with costs, and judgment directed for defendants dismissing the complaint, with costs. The fifth finding of fact should be reversed and a new finding of fact made in place thereof in which the correct amount paid to plaintiff, to wit, $7,803.22, is stated, and the conclusions of law should be reversed.
Kelly, P. J., Rich, Manning and Kapper, JJ., concur.