121 Misc. 505 | N.Y. Sup. Ct. | 1923
The plaintiff is a materialman and brings this action to foreclose its mechanic’s hen, amounting to $489.87 and interest, against the premises No. 866 Lexington avenue, New York city. Various subcontractors who filed mechanics’ hens against the premises are named as defendants in the action. The original contract price was $22,857 and the agreed price of the extras was $1,125, making a total amount of $23,982. The heps of the plaintiff and the Anderson Brick and Supply Co., Inc., were filed on May 11, 1922, but were not served upon the owner until May. 20, 1922. The hens of the other subcontractors were filed subsequent to May 20, 1922. As the plaintiff and the other hen claimants must -claim through the general contractor, the Woodward Construction Company, Inc., a payment which was not due to it was not due to them. They are under the same obligation to prove performance and to the same extent that the general contractor would be. Their rights as henors are measured by the rights of the general contractor under the contract. Van Clief v. Van Vechten, 130 N. Y. 571, 580. A mechanic’s hen depends for its validity upon the owner’s indebtedness to the contractor, and the burden rests upon the hen claimant to prove the indebtedness. - Brainard v. County of Kings, 155 N. Y. 538. The defendant owner in this case expended more money than the total amount of the original contract price plus the agreed price of the extras in order to complete the building. The settled construction of the Lien Law is that except in the case of fraud (and none was proved here) the owner cannot, under any of its provisions, be compelled to pay any greater sum for the completion of a building than by his contract he has agreed to pay. Crane v. Genin, 60 N. Y. 127. The defendant owner claims that prior to the date of filing of plaintiff’s notice of hen the general contractor abandoned the contract and requested him to finish it. If the contractor defaulted, the owner had the right to finish the work and make the payments necessary to complete it. The plaintiff and the other hen claimants contend that contractual relations between the owner and general contractor had not ceased on May 20, 1922, the date of the first notice to the owner of the fifing of hens, and that there was no cessation of contractual relations between the two at any time. The owner is protected in ah payments made at least up to May 20, 1922. If before this
Judgment accordingly.