58 A.D. 231 | N.Y. App. Div. | 1901
The action was brought to foreclose a mechanic’s lien and was tried at Special Term.. The trial judge filed a short decision under section 1022 of the Code of Civil Procedure, which did not state separately the facts found. The appellant filed a general exception to such decision, and under this section. of the Code this court -is. required to review all questions of fact and law, and the whole case,, therefore, is before us for review. The complaint alleges that the-defendant Jones was the owner of the property described in the-complaint, and that he entered into a contract with the defendant, the Manhattan Concrete: Company, who agreed to erect the partitions and do the necessary cementing and plastering connected therewith for a building then in course of erection upon the said premises,, and that thereafter the plaintiff, at the request of the said Manhattan Concrete Company, furnished to such company certain building materials at an agreed price of $3,614.96, of which the sum of
It is difficult to see by what authority the court rendered any judgment in .this case in favor of the defendant Fridenberg, the assignee of the Manhattan Concrete Company, the contractor for this building. There is no claim that either this company or Fridenberg had filed any notice of lien or had in any other way acquired the right to share in the proceeds of the sale of the premises, but the judgment directed the payment to Fridenberg, as assignee of the contractor, of the surplus which might be left after the application of the proceeds of the sale to the satisfaction of the plaintiff’s lien. There was a dispute between the builder and the contractor as to the amount due to the latter for his work. In the absence of any lien, the owner was entitled to a trial by jury in any action brought to establish the claim of the contractor against him, but no opportunity for such a trial was ever afforded to him. Even if such a right did not exist, and Fridenberg might have been able, without establishing his claim against the owner in an action at law to obtain a portion of the surplus upon some principle which is not stated, yet, certainly, in order to do this he must comply with the procedure which is established by the Code of Civil Procedure where one defendant seeks affirmative relief against another. In such a case the law requires that the defendant who desires the determination of a right asserted by him against another defendant, must demand it in his answer, and must at least twenty days before the trial serve a copy of his answer upon the attorney for each of the defendants to be affected by the determination. (Code Civ, Proc. § 521.) The answer of Fridenberg demands no determination as against the owner of any right that he claims upon this contract. He alleges that there was due to him upon the contract the sum of $3,070.61, and he asks that the court adjust the -equities of the parties to the action in such fund of $3,070.61, and the order of priority between the plaintiff and the other persons
But if it did, he has not complied with the Code by serving a copy of his answer upon the defendant Jones, and, therefore, unless in some way his default in that regard has been excused, he has no right to an affirmative judgment against him. But it is suggested that Jones waived his right to insist that the answer of Fridenberg had not been served upon him by voluntarily proceeding with the trial of the action and litigating the question what, if anything, was due from the contractor to him. It is said that this waiver consisted in his sitting by and without objection permitting evidence to be admitted, on the trial as to the amount due from him to the contractor.
No work was done by the contractor after October, 1898. The notice of the lien of the materialman was not filed until November 30, 1898. All that he could claim in this action was what was due and unpaid to the contractor at the time when the notice of the lien was filed (Heckmann v. Pinkney, 81 N. Y. 211 ; Larkin v. McMullin, 120 id. 206), and to enable the plaintiff to recover it was necessary for him to establish that a certain sum of money was due to the contractor at that time. Jones by his answer denied that anything was due, so that between him and the materialman the question of the amount due to the contractor, assignor of Fridenberg, was a material question and one absolutely necessary to be determined to establish the plaintiff’s rights. If Jones had objected to. the evidence on that subject his objection would necessarily have been overruled. A waiver is an intentional abandonment of a known right. It cannot be said that Jones, who was litigating with the plaintiff a question material to the issue between them, consented that another issue between himself and Fridenberg, not necessary to the decision of the case, and of which he had no notice, should be determined and decided in this action.
As to the judgment in favor of the plaintiff establishing and enforcing its lien against the premises, we have come to the con
The notice of lien was clearly sufficient under the statute. It. complied with section 9 of the Lien Law (Laws of 1897, chap. 418).. There was no error in rulings upon questions of evidence to which our attention has been called, and upon the whole case we think the* judgment in favor of the plaintiff should be affirmed.
The judgment appealed from is, therefore, modified by striking-out the provision therein directing the payment to the defendantFridenberg, and as modified affirmed, with costs to the appellant, against the defendant Fridenberg, as assignee, and with costs to the* plaintiff against the appellant Jones.
Patterson, Rumsey and Hatch, JJ., concurred.
Judgment modified by striking out the provision directing the-payment to the defendant Fridenberg, and as modified affirmed, with costs to appellant as against the defendant Fridenberg, as assignee,, and with costs to the plaintiff as against the appellant Jones.