1 Daly 396 | New York Court of Common Pleas | 1859
By the Court.
The lien was filed on the 30th of September, 1857. It embraced marble furnished and work performed in pursuance of a written contract entered into' between the plaintiff and the defendant, and did not and could not include materials furnished or work performed after that date. The contract was given in evidence. By the terms of it, the plaintiff was to furnish the marble for the seven houses according to the plans, cut in a workmanlike manner, finished complete, ready for setting,- and of quality as good as the pattern houses. After specifying the dimensions of the ashlar in and above the basement, and enumerating certain things that are to be included, such as street roof and chimney coping, sills, lintels, &c., the contract closes with a provision that it is to include all work shown in the plans, or which maybe necessary to finish the houses and appurtenances according to the defendant’s, Mildrum’s design in building. It appeared by the answer that the last load of stone, which was the base blocks for the iron railings, was delivered at the building on the 1st of October, 1857, the day after the notice of lien was filed. We have not the plans to ascertain whether this work, the base blocks for the iron railings, .was included in the contract; but it was said, and I understood it to have been conceded at the argument, that the plans were before the referee, and that this work was not embraced by them. If so, it was extra work; and as the last load before this was delivered at the building on the fith of September, 1857, it m.ay he concluded that all the work was performed, and all the materials furnished, embraced in the written contract to which the notice of lien referred, before the filing of the notice. There was extra work specified in the hill of particulars attached to the notice of lien, to the value'of-§253.58, which does'not appear to have included the base blocks for the iron railings delivered on the 1st of October, 1857, and it may therefore be concluded further, that the extra work,
As to the quality of the materials, the manner in which the stone was cut, and the wmrk done, the evidence was conflicting. There was evidence on the part of the plaintiff that ic was in all respects in conformity with the contract, and the referee having found that it was, his decision upon -that point is conclusive. If there was an omission -or failure on the part of- the plaintiff to keep two derricks constantly going, the defendant waived ail claim to damages in consideration oi the plaintiff’s taking his note for what remaim d of one of the payments, which note was taken by the plaintiff and was paid.
The evidence as to the time when the demand of the mortgage was made, was that it was about the time when the plaintiff’s contract for the stone work was done ; some two or three weeks before the filing of the notice of the lien. The evidence left the time somewhat uncertain, hut it was positive as to a demand before the filing of the notice ; and the referee having found that the mortgage was duly demanded, after the written contract had been performed, and before the filing of the notice, we would not, I think, be justified in holding that he was not warranted by the evidence in so finding.
The conveyance to Livingston was in effect a mortgage given to secure certain moneys advanced by Livingston to the plain
The lien could attach only to the land and buildings owned by the plaintiff at the time of the filing of the notice, and only to the extent of the labor and materials upon the house, building, appurtenances, and land to which the lien attached. The words of the statute are, that the person performing labor, or furnishing materials, in building, altering or repairing “ any house or other building,” shall have a lien for the value of such labor and materials, “ upon such house or building, and appurtcnances, and upon the lot of land upon which the same stand.” I think it follows from this provision that the six houses owned by the defendant when the notice of lien was filed, could not be charged xvith the labor and materials that had gone to the erection of the seventh house, and which before the filing of the notice, had been, as the referee has found, equitably conveyed to blrs. Pinckney, and was then owned by her. The lien did not, as he has found, attach to that house, * * ' nor could the lien which attached to the six houses cover any thing more than the labor and materials that had gone to their erection. I do not see upon what principle of construction we could hold, that the right of lien which was lost by the sale and transfer of that house, or rather which had not been created by the filing of the notice when that sale and transfer took place, could by the filing of the notice attach to the other six houses;—and to this extent I think the referee erred. The filing of the notice created a lien upon the other six houses for the value of the labor and materials that had gone to their erection, to the extent of the whole of the plaintiff’s right, title and interest in those houses existing at the time of the filing of the notice, (Paine v. Bonney, 4 E. D. Smith, 734), but this was its limit and extent. As tlie labor and materials were furnished by the plaintiff under a contract made with the defendant, the plaintiff may have been entitled under § 6 of the amended Act of 1855, to a judgment for the whole amount owing to Mm by the defendant under the contract; and if the property still continued in the defendant, that judgment, from the timo that it was docketed, would in itself be a lien upon the premises—but if, in the meanwhile, they had been trailsferred to another owner,-they would pass in virtue of the filing
Judgment reversed. Eew trial ordered, costs to abide event.
The ruling in the case was reaffirmed at. February General Term, 1863, McMullen v. Chester. Present Daly, F. J.. Brady and Cardozo, JJ.
