66 N.Y.S. 35 | N.Y. Sup. Ct. | 1900
This is an action to foreclose a mechanic’s lien. Walsh was the owner of a lot, and made a contract with Lawler to put a building thereon. The latter defaulted on his contract, and the former completed it. It was conceded upon the trial, or found by the court, that the owner was entitled to credit against the amount unpaid on the contract,
For work and materials in finishing it up............... $256 76
For damages in loss of rents............................ 42 00
He had paid upon the contract, outside of the order
hereinafter mentioned . . . .......................... 1,375 00
Total.......................... .i.,. ,i. ........... $1,673 76
The original contract price was ........,.............. 2,460 00
Leaving a balance of............................... $786 24
over which the dispute arises between plaintiff and the owner. Plaintiff furnished to the contractor for use in building the house between May 10, 1899, and August 30, 1899, lumber, etc., of the value of $875.71, upon which he has been paid the sum of $200. Upon the last date he filed his lien for the unpaid balance which he is now seeking to foreclose and have paid out of the aforesaid balance of $786.24.
The contractor made a contract with Keiffer Brothers, to furnish him with hardware to be, and which actually was, used in building said building. To procure the same he gave them an order for $375 on the defendant owner, who, on or about June second, accepted, and after August thirtieth paid, the same. Plaintiff never knew of this order until the date upon which he filed his lien.
This order was never filed in the county clerk’s office, and the question is, whether the owner can have credit for the amounts paid by him thereon against the aforesaid balance before plaintiff’s Lien is paid.
I do not see how he can. Section 15, chapter 418, Laws of 1897
No case has been cited to my attention by the counsel, upon either side, construing this section. Its language, however, is so broad and plain as not to appear to need much interpretation. By its terms it is applicable to and covers an order such as that involved in this case. That being so, the results which flow from a failure to file the order are fixed and definite. It is not valid against the plaintiff’s lien.
Judgment, therefore, is ordered for the foreclosure of his lien and for the payment of his claim, with interest, out of the unpaid balance above stated. He is also allowed his taxable costs, in addition to taxable disbursements to the amount of fifty dollars.
Ordered accordingly.