201 N.Y. 65 | NY | 1911
The action was brought to foreclose a mechanics' lien upon a public improvement, to wit, an armory constructed for the city of New York. The lienors were numerous, and all of them as well as the principal contractor, the James D. Murphy Company, and The City of New York, were parties to the action. The respondent here is the contractor. The appellants are several lienors who have been denied any right to payment out of the fund deposited by the contractor to discharge the liens and as a condition of obtaining payment from the city, on the sole ground that the liens were filed too late in point of time.
The trial court found that on January 26th, 1904, the respondent, the James D. Murphy Co., entered into a contract with the city of New York, by the armory board of the city, for the erection of an armory building in the borough of Manhattan for the sum of $619,532.33; that the work under said contract was prosecuted until the 8th of October, 1906, at which time the architects issued a certificate to the effect that the contractor was entitled to the amount remaining unpaid on the contract, to wit, $96,091.24, less the sum of $2,000, to be retained as a guaranty under certain provisions of the contract, and less also the further sum of $1,000 to be retained for uncompleted work, leaving the amount certified for payment at $93,091.24; that on said date the armory board adopted the following resolution:
"Resolved, that the Armory Board does hereby accept the *70 69th Regiment Armory from the contractors as completed with the reservation named in this resolution; that the Comptroller be authorized to pay to the James D. Murphy Company, contractors, the sum of Ninety-three thousand and ninety-one and 24/100 dollars ($93,091.24) for the execution of their contract for the erection of the 69th Regiment Armory in the Borough of Manhattan, being a payment in full with a reservation therefrom of One thousand dollars ($1,000) until the marble tablet, etc., are properly installed; and a further reservation of Two thousand dollars ($2,000) as provided in the contract under paragraph `Z,' for one year from the date of the issuance of the final certificate as a guarantee for the perfect working and efficiency of the steam heating apparatus; that the roofs of the building shall be made tight and any defects which may appear in the entire work;" that said certificate and resolution were delivered to the comptroller of the city; that on November 17th the engineer in the department of finance reported to the comptroller that the electric work was defective and recommended that $3,091 be retained until such defective work should have been made good; that thereupon the claim of the contractor was audited at $90,000, and in March following the comptroller drew his warrant for said sum.
As to the condition of the building the trial court refused to find that it was completed on the date of the certificate and resolution, but did find that it was then "substantially completed" and that shortly thereafter it was occupied by the National Guard as an armory. It also found that on that date certain plumbing work required by the contract was uncompleted, to wit, the installation of water lines over the ammunition room in the armory and that subsequently the contractor caused said water lines to be installed; that such plumbing work consisted of about 100 feet of 2 or 3-inch pipe. The dates the respective liens of the several appellants were filed are as follows: Jerome A. Jackson, November 20, 1906; Roebling Construction Co., November 21, 1906; Baker, Smith Co., November 22, 1906; Patrick H. McNulty, December *71 13, 1906. It further found that between January 31st, 1905, and November 16th, 1906, the appellant Baker, Smith Co. performed and furnished labor, work and materials to the contractor in or about certain extra work in addition to that provided for by the contract between Baker, Smith Co. and the James D. Murphy Co., which extra work, labor and materials "were performed and furnished in conformity with the terms of and towards the performance and completion of the aforesaid contract between the said James D. Murphy Company and the city of New York * * * and were actually used in the execution and completion thereof." On these facts the trial court decided that each of the appellants' liens was invalid because not filed within 30 days after October 8th, 1906, the date of the acceptance by the armory board, though it awarded the appellants personal judgment against the contractor for the amounts of their several liens.
Section
The view we have taken is further supported by the provision of the charter (§ 421) which provides: "It shall be the duty of any borough president, or head of any department, having in charge any work, within five days after the acceptance of such work, to file with the comptroller a final certificate *74 of the completion and acceptance thereof, signed by the chief engineer or head of his department. The filing of such certificate shall be presumptive evidence that such work has been completed according to contract." From this it would appear that the certificate of completion and acceptance is only presumptive, not conclusive, evidence of completion. It may also be said that in this case the certificate of the armory board shows that the work was not completed, the contractor having failed to install the tablet, and that the sum of $1,000 was directed to be deducted, not in satisfaction of the failure of the contractor to fully perform, but as security for subsequent performance. It also appears that by the action of the comptroller the further sum of $3,000 was retained as security for making good the electric appliances.
The appellants (other than McNulty) contend that by reason of the deposit to discharge their liens they are entitled to have the claims for which they recovered personal judgments paid out of the fund, even if their claims were invalid. We agree with the majority of the Appellate Division that this contention cannot be upheld. Subdivision 4 of section
While some of the appellants claim that on the findings of the trial court final judgment should be awarded in their favor by this court, it is not clear that the facts may not be varied on a new trial, and it must be borne in mind that the respondent's exceptions are not before us. It is also contended by the respondent that the finding of the time during which the Baker Smith Company's work was performed is the result of misconstruction of the effect of that finding by the trial court. Under the circumstances we think that the wiser course is to order a new trial.
The judgment should be reversed and a new trial ordered, costs to abide the event.
GRAY, HAIGHT, WILLARD BARTLETT, HISCOOK and CHASE, JJ., concur; VANN, J., absent.
Judgment reversed, etc. *76