7 Daly 471 | New York Court of Common Pleas | 1878
A contract was made on the fifth of February, 1872, between James Gordon Bennett (now deceased) and Edward Hall, for the mason work of a building 4o be erected according to certain specifications upon certain premises owned by the former, and constituting the entire lot fronting on the west side of Nassau street, between Ann ¡and Fulton streets. The building was to be completed on .or before the first day of April, 1873.
The work was to be paid for in monthly instalments as it progressed, to the amount of eighty per cent, of the value of the work, upon certificates of the superintendent and ■architect that the work had been done in a good, workmanlike and substantial manner, and the balance of twenty per cent, paid on the like satisfactory completion of the whole.
The contractor commenced the work on the 1st of May, 1872. James Gordon Bennett, who thus contracted with Edward Hall, died in May or June, 1872, leaving a last will and testament, by which he devised the premises and his other residuary estate to the defendant upon trust to collect the rents and profits, and after paying “ taxes, assessments, interest, and other outgoings,” to pay the residue to his daughter Jeanette during the lifetime of his wife,- and on the death of the latter all such estate was to be divided equally between the defendant and his sister Jeanette. By a subsequent codicil the interest of Jeanette was limited to a life estate, with remainder to her children or descendants. Mrs. Bennett, the widow, died March 31st, 1873, and as to Jeanette the trust continues.
The referee finds that the defendant “individually, and as such trustee, ratified and adopted said contract with said Edward Hall,” and authorized and directed him to proceed under the same, and erect said building, but fails to find the further allegation of the claimant that he “ assumed ” said contract. The finding is ambiguous, and is not founded upon any agreement shown to have been made by the -defendant upon any new and independent consideration, nor by any writings signed by him, to create any liability within the provisions of the Statute of Frauds. It establishes no personal claim against the defendant after the death of his father. The contractor, Hall, after the death of the father, proceeded to perform the work under the original contract, ■and nothing is suggested by the pleadings or testimony exempting the estate of the father from the payment of any debt-arising under his contract. The finding that the defendant “ ratified and adopted ” the contract and directed the
The alleged liens were all imposed in September and October, 1872, which was three months after the death of James Gordon Bennett, the contracting owner. None of them, so far as established by the judgment, existed upon any debt personally created by the defendant as owner, but were all founded upon the contract made by the testator with Edward Plall.
The contract not being of such a character as to be affected by the testator’s death, was one that continued, notwithstanding the death or transfer of the interest of either party, but no such personal assumption of any of its obligations by the defendant having been shown, the personal judgments awarded against him cannot be sustained.
Ownership of the property by a contracting owner must, in my opinion, exist throughout performance of the original contract, and be concurrent therewith, in order to render the property liable for work done thereon, and authorize the imposition of a lien under the Mechanics’ Lien Law of 1863. No lien can be created on the interest of any person as
Therefore, work done on premises in pursuance of a contract with a prior owner is not the subject of lien proceedings under the act of 1863 as against a succeeding owner, and unless such lien has already been imposed before any transfer of the title is effected by deed or operation of law, any proceedings thereafter instituted under the act are entirely ineffectual, even to afford any right to a personal judgment between any of the parties to the contract.
The act of 1863, as amended by chap. 752 of the Laws of 1866, only authorizes a sale of the right, title and interest which the owners shall have in the premises at the time of the filing of the notice of lien (Laws 1866, c. 752, vol. 2, p. 1634). The amendment materially varied the rights of lien created by the act of 1863, which was upon the house or building and the appurtenances, and the lot on which the same should stand, notwithstanding any sale or transfer made after the commencement of the work or furnishing of material. (L. 1863, c. 500, §1.) This, as remarked, has reference to the contracting owner, and not to subsequent purchasers, who have succeeded to the title before the lien was created, even if they have assumed payments of the claims (see cases cited in Guernsey’s Mech. Lien Law, § 89 to 92; Quimby v. Sloan, 2 E. D. Smith) 594; and it is the fourth proposition affirmed by this court in the case of Bailey v. Johnson (1 Daly, 61), supported by numerous authorities therein cited.
The death of the testator and contracting owner, and his devise of the premises to the defendant upon trusts, which
Under these views I am of opinion the judgment should be reversed and a new trial ordered, with costs to abide the event.
Joseph F. Daly, J., concurred.
Judgment reversed and new trial ordered, with costs to abide the event.