1 N.Y.S. 659 | N.Y. Sup. Ct. | 1888
In June, 1875, the mayor, etc., entered into a contract with one Michael Gavin for regulating, etc., certain sidewalks .on Lexington avenue, in the city of New York. The contract contained a provision that Gavin should be paid for such work in monthly installments of 70 per cent, of the value thereof, and that the city should retain 30 per cent, of the amount claimed under said contract; and by the contract Gavin agreed that he would furnish to the commissioner of public works with satisfactory evidence that all persons who had done work and furnished materials under the agreement, and had given written notice to the said commissioner before or within 10 days after the completion of the work that any balance on such work and materials was still due and unpaid, have been paid or secured. And it was further provided that, in case such evidence be not given, such amount as might be necessary to pay the claims of the persons aforesaid should be retained, from any moneys due the contractor under the agreement, until the liabilities should be fully discharged or secured or such notice withdrawn. The contractor, Gavin, began the work under such contract, and employed the defendant Winant to do work and furnish materials in and about the performance of the contract, which Winant did; and there was due to him, at the time of the commencement of the action, for such work and materials, a balance of over $2,000. Gavin assigned to the plaintiff the moneys due, and to grow due, under said contract, in November, 1875. In July, 1887, the defendant Winant filed notice of lien with the comptroller for the amount due to him from Gavin. The plaintiff subsequently brought suit for the balance due upon Gavin’s contract, and the defendant Winant was made a party because of the notice he bad filed with the comptroller, and the principal contention between the parties was whether the defendant Winant had a lien upon these moneys.
The fact that Winant had done work and furnished materials in connection with this contract gave him no lien independent of some provision of law, or some arrangement between the contracting parties. It appears, by the terms of the contract, that provision was made for the filing of notice of lien against
We think, however, that the referee was in error in the judgment which he settled and ordered to be, by giving separate bills of costs against the defendant the mayor and the defendant Winant. The result of the judgment would be that, although one defendant paid the whole bill of costs, and all .that the plaintiff could possibly claim by way of costs resulting from this litigation, the plaintiff would still have the right to collect a precisely similar bill from the other defendant. It was the same trial and the same proceeding, .and the entry of separate judgments giving full costs against each of the defendants is utterly unwarranted by any of the provisions of the Code, so far .as we have been able to ascertain. We think, therefore, that the judgment, so far as it awarded separate costs against the defendant Winant, is unfounded, .and should be reversed. The judgment as modified should be affirmed, without costs of this appeal.
Brady and Daniels, JJ., concur.