2 Daly 367 | New York Court of Common Pleas | 1868
The evidence fully justified the finding of the referee, that the conveyance of the premises to John A. Williams was not bond fide, but was made with intent to defraud the plaintiff and defeat his lien. The plaintiff had a right to impeach its validity in this action. He had an incipient lien when this transfer was made, which became absolute, under the Act of May 5, 1863, when the notice was filed with the county clerk. The Act of 1863 provides that incumbrancers may be made parties in the action or proceeding, to enforce the lien. John A. Williams, to whom this fraudulent conveyance was made, comes under the denomination of an incumbrancer, and as such was made a party; and the plaintiff, having established in the action that he was a creditor of the fraudulent grantor to the extent of $866, was entitled to have this conveyance declared void, so far as it interposed any obstacle to the enforcement of his lien (2 Rev. Stat. 137, § 1; Clute v. Fitch, 25 Barb. 432; Van Etten v. Hurst, 6 Hill, 311). The Act of 1863 declares that the court may determine the rights of all the parties, and that such judgment or decree shall be made as to the rights and equities of the several parties among themselves, and as against any owner, as may be just (§§ 2, 5, 7). This is ample to confer upon the court, in this action, the power to give relief against this conveyance, and to declare it, as against the rights of the plaintiff, to be fraudulent and void; and the conveyance, having been adjudged to be fraudulent and void, it becomes unnecessa
The plaintiff testified that he could have completed the work by the 15th of February, but for a delay arising from the impossibility of plastering on account of the weather. Several of the defendants’ witnesses testified that the delay in the plastering could have been avoided by putting up stoves in the building and keeping up fires to dry the walls, and Williams and his wife swore that the plaintiff said to them that he would do so. This the plaintiff denied, and gave a very different version of what passed between him and Mr. and Mrs. Williams upon the subject, while one of his witnesses, a plasterer, testified that fires will not have much effect in drying walls. The evidence upon this head being conflicting, we must assume that the referee found that the testimony on the part of the plaintiff was the more reliable, and that testimony was to the effect that both Williams and Mrs. Williams assented to the delay. The plaintiff swore that he told Williams that it was impossible to do the plastering on account of the weather; that if he insisted upon having it done it would tumble when a thaw came, and that Williams answered that he did not want it to tumble on him—in which connection it may be remarked that the plaintiff swore that Williams told him when he ordered the extra work to be done, that he owned the premises, and that Williams never told him at any time that his wife was the owner of the property. The plaintiff testified, further, that he told Williams, that he, the plaintiff, would be obliged to wait until the weather would permit, and that Williams replied that the weather might change, and he must get at it as quick as he could, making no objections to the delay. When further interrogated upon this point, the plaintiff stated that there were two carpenters present, whom he named, when this conversation occurred, and that Williams said that he wanted the plaintiff to get on as soon as Tie oovM, and that Mrs. W.
The evidence was ai~iple to warrant the referee in finding that Williams acted throughout in the whole matter of the erection of. the building as his wife's agent, and by her authority, so as to make all that he did binding upon her. From the peculiar relation of the parties, that of man and wife, evidence by no means as conclusive as that which was given in this case would have been. sufficient to show that such was the fact. According to hiss own statement, he had worked as a practical builder; he had put up, and for nine or ten years he had a knowledge of, and was familiar with, mason and carpenter work. He was about the premises generally every other day, superintemiing and directing the work, and carefully examined, at times, according to his own statement, the manner in which it was clone, and the quality of the materials furnished. He ordered changes to be made and extra work to be done, and the bill for the extra work was given to him. lie signed the contract for the erection of the building, and when the plaintifi~ wanted Mrs. Williams to sign it, Williams, according to the plaintiff's statement, "did not seem to wai~t her to." He made four payments to the plaintiff in his wife's presence. She never gave any directions to the plaintiff to make
Many of the variations were made by his express direction. This we must assume that the referee found wherever the testimony of Williams was in conflict with that of the plaintiff. The plaintiff denied that he made any other variations, and if the fact were otherwise, they were made under the eye of the husband, without any objection on his part at the time, he superintending the erection as the agent of his wife, and being, as proved by himself, an expert. The referee, therefore, was justified in concluding, that if made they were made with
On the 16th of March, 1865, Mrs. Williams made - the fraudulent conveyance of the premises to John A. Williams, and on the 23d of the same month she and her husband gave a written notice to the plaintiff, directing him to discontinue the work, accompanied by the declaration of Geo. E. Williams to the plaintiff before referred to. The notice advised the plaintiff that others would be employed to complete the building, that the cost thereof would be charged to his account, and that the parties, Williams and his wife, would claim damages from him for the nonperformance of the contract, as they had
Williams and his wife having assented to the delay oc
The subcontractors, Hargrove and Glare, averred that they agreed with the plaintiff to do the plastering work in and about the premises described in the complaint; that they completed the same as far as it was possible, when they were prevented from completing it by the defendants, George E. and Sarah J. K. Williams, and that what they did was worth $103, and this averment was not controverted by the plaintiff or by any of the defendants. They also proved upon the trial that they did the plastering work upon the building, and each of them was minutely examined upon the trial as to the character of the work and the quality of the materials. The defendant, Heany averred that he put up the marble mantels, under an agreement with the plaintiff, and proved upon the trial that he put up four in the building, which were the same in every respect, as near as he could make them, as those in Hr. Tucker’s house, which, by the plaintiff’s contract, was the pattern to be followed; that the parlor mantel was $45, and the other three $20 each. If the statement of the claims of these subcontractors were defective, which I by no means concede, it would still make no difference, as the Act of 1863 declares that that shall not impair or affect the rights of the claimant, but that they shall have relief according to their rights as they shall appear in evidence, and the evidence was amply sufficient to show that the work done and materials furnished by these subcontractors was in pursuance of the contract made with the plaintiff for the erection of the building, and that is all that is
The Act of the 13th of April, 1855, declared that the judgment should direct the sale of the interest of the owner in the land and premises upon which the lien existed, to the extent of the right of the owner at the time of the filing of the notice, and this being a statutory provision, it had ‘to be strictly followed (Hauptman v. Catlin, 20 N. Y. 247). This Act and all former Acts are repealed by the Act of 1863, § 12, except so far as it may be necessary to carry into effect liens acquired before the Act of 1863 took effect. The lien here took effect under the Act of 1863, and that Act contains no such provisions as the one referred to in the Act of 1855, but simply provides, § 5, that judgment shall be rendered according to the equity and justice of the claims of the respective parties, and § 9, that it may be enforced by an execution, under which the property covered by the lien may be sold, and the proceeds distributed as ordered by such judgment. The lien becomes absolute to the extent of the right, title, and interest which the owner had in the premises at the time when the notice was filed, which interest, according to the provisions of the Act, cannot be divested by any sale or transfer made after the commencement of the work or furnishing of materials. No such sale or transfer exists in this case, the one which was made having been adjudged to have been fraudulent and void, and the decree therefore directs that the premises be sold under execution, and provides for the manner in which the proceeds shall be distributed, which is in strict conformity with the provisions of the Act of 1863.
It remains but to consider the exceptions taken to the admission or to the rejection of testimony. Meehan was asked, if joints filled with putty would be good workmanslfip. No foundation had been laid for such a question, at least none is pointed out, and I have failed to find any. The referee, therefore, ruled correctly. The inquiry was immaterial.