134 N.Y.S. 187 | N.Y. App. Div. | 1912
This is an action to foreclose a municipal lien. On the 25th day of June, 1901, the appellant Hildebrand entered into a contract with the city for the erection of a public hath building in the borough' of Brooklyn, pursuant to certain plans and specifications, for the gross sum of §165,480. On the 10th day of February, 1908, he sublet the furnishing of materials and the work required in heating and ventilating the building to the defendant R. J. Sovereign Company, Inc., for the gross sum of §21,000; and on the thirteenth day of the same month the Sovereign Company in turn sublet the furnishing and installation of the Johnson system of temperature regulation to the plaintiff, for the gross sum of §734, “ less 10%. ” The judgment awards the balance of §868.50 due from Hildebrand to the Sovereign Company to the plaintiff to the extent of §756.93 in payment of the balance due on its claim against the Sovereign Company, and the balance to the Babcock & Wilcox Company, which was also a sub-contractor of the Sovereign Company for the installation of two Babcock & Wilcox patent steam boilers, for which there remained due from the Sovereign Company §1,000, for which the the Babcock & Wilcox Company had filed a lien. The liens of the plaintiff and of the Babcock & Wilcox Company were discharged by Hildebrand’s filing an undertaking with the appellant surety company as surety. Hildebrand and the surety company are the sole appellants, and their contentions are the same.
The appellants contend at the outset that the action was prematurely brought, in that there was nothing due or owing from Hildebrand to the Sovereign Company at the time it was commenced. The contract between Hildebrand and the Sovereign Company provided for the payment of eighty-five per cent of the contract price of the work as it progressed, and that the last payment should he the remaining fifteen per cent, which should not he payable until the work was completed and accepted by Hildebrand and until he received his final payment from the city. The Sovereign Company with the consent of
The final payment from Hildebrand to the Sovereign Company, under the contract as modified, was to be the sum of $1,050. The Sovereign Company abandoned its contract in May, 1909. At that time there remained a balance unpaid on its contract of $1,568.50. The contract between the Sovereign Company and Hildebrand provided that, upon its failure to furnish sufficient labor and materials, Hildebrand might upon three days’ notice procure the same and “ charge and deduct the cost thereof from the amount due the sub-contractor under this present agreement, and to collect the deficiency, if any, from the sub-contractor. ” On the abandonment of the work by the Sovereign Company, Hildebrand took charge and completed it. By the judgment the court has allowed him the
The president of the Sovereign Company testified at one point that his company completed its contract with the exception of furnishing and installing the electric fan to operate the blower, the motor, electric wiring and switchboard, and that appellant Hildebrand did this work. He was then asked the fair market value of the work done by appellant Hildebrand in completing the contract, and he answered that the fair market value was between $700 and $800; and he further testified, in effect, that his company abandoned the work pursuant to an arrangement made at his suggestion, with appellant Hildebrand, that the latter should give his company three days’ notice pursuant to the contract, which his company would accept, “ and he could finish the job at the price agreed on, between seven and eight hundred dollars, and the balance would be paid to my lienors, creditors. That was all arranged and agreed upon. He said he agreed with me on the facts of
It follows, therefore, that the judgment should be reversed and a new trial granted, with costs to appellants to abide the event.
Ingraham, P. J., McLaughlin, Miller and Dowling, JJ., concurred.
Judgment reversed, new trial ordered, costs to appellants to abide event.