27 N.Y.S. 508 | N.Y. Sup. Ct. | 1894
This action was brought in pursuance of the provisions of chapter 315 of the Laws of 1878, to foreclose a mechan
There was very little conflict in the evidence given upon the trial. 'The only question upon which- there was any substantial dispute was whether the defendant Crabtree completed the building as .•assignee of Baker & McAllister, or whether he did it individually, .and to protect himself against liability on the bond which he had executed to the board of education. " Upon that question the court •found that the work was performed by Crabtree individually, and not -as such assignee. This finding was fully and fairly sustained by the «evidence. That the contract was abandoned by Baker & McAllister ¡several days before they made their general assignment, is quite ■obvious. We also think the evidence was quite sufficient to justify the court in finding that Crabtree was employed to complete the building for the city, and in holding that he was entitled to the remain■der of the fund dedicated to that purpose. At the time of the filing of the notice of lien there was nothing due Baker & McAllister. 'They had before that time abandoned the contract, and the notice of lien was ineffectual to charge the funds in the hands of the city. ’The expense of completing the work, including Crabtree’s services, was several hundred dollars greater than the amount unpaid on •the contract. Under these circumstances, we are unable to discover .any principle upon which it could be held that the plaintiff acquired .a lien upon the fund in question. We are of the opinion that the ■decision of the learned trial judge was right, and is fully sustained by the authorities in this state bearing upon the question. Weisemair v. City of Buffalo, 57 Hun, 48, 10 N. Y. Supp. 569; McCorkle v. Herrman, 117 N. Y. 297, 22 N. E. 948; Larkin v. McMullin, 120 N. Y. 206, 24 N. E. 447; Van Clief v. Van Vechten, 130 N. Y. 571, 29 N. E. 1017; Hollister v. Mott, 132 N. Y. 18, 29 N. E. 1103; French v. Bauer, 134 N. Y. 548, 32 N. E. 77; Mack v. Colleran, 136 N. Y. 617, 32 N. E. 604; Ogden v. Alexander, 140 N. Y. 356, 362, 35 N. E. 638. But it is said that the cases cited arose under the statute of
We have examined the various rulings of the trial judge upon the admission and rejection of evidence, to which our attention has been called, but have found no error which would justify us in reversing the judgment. Nor do we discover in the refusal of the trial court to find, in accordance with the proffered requests of the plaintiff, any such error as would justify us in disturbing this judgment.
The only remaining question suggested by the appellant is as to the costs awarded to the defendants. The court dismissed the plaintiff’s complaint as against the city of Syracuse and the defendant Crabtree with a bill of costs to the city and one to Crabtree against the plaintiff. The statute under which this action was brought provides: “Costs in all actions shall rest in the discretion of the court, and shall be awarded to or against the plaintiff or defendants, or any or either of them, as may be just.” Laws 1878, c. 315, § 11. Thus, in an action commenced in pursuance of that statute, the costs are clearly in the discretion of the court, and we find no reason to doubt its power to award a separate bill of costs in favor of each of the defendants named, nor to question the propriety of such award. These considerations lead us to the conclusion that the judgment should be affirmed.
Judgment affirmed, with one bill of costs only. All concur.