15 Daly 304 | New York Court of Common Pleas | 1889
This action was brought by the plaintiff, a subcontractor, against the appellant, Catharine Taylor, the owner, and the lienors above mentioned, to foreclose a mechanic’s lien. The referee found that the lien filed by the plaintiff was so defective as to render it void. To this finding plaintiff excepted, but from the judgment entered thereupon has taken no appeal. He therefore has no standing in court for any purpose, much less to ask for an order of this court at general term to cure his defective lien. If this can be done at all, which is doubtful, it can only be granted in the first instance at special term, upon proper papers.
On the other hand, the appellant contends that, because the plaintiff failed in his claim, the other lienors are entitled to no judgment whatever. The authorities cited do not sustain this contention. The liens in question, if any, were acquired under chapter 23 of the consolidation act of 1882, as amended by Laws 1883, c. 276. Section 1815 of the first-mentioned act provides that all persons who have filed claims on the property may set forth such claims in their answers, and the court in which the action is pending may decide “ as to the extent, justice, and priority of the claims of all the parties to the action,” and must, of course, render judgment accordingly. Hence the failure of the plaintiff to establish his claim cannot prevent other lienors, who have established valid claims, from obtaining such relief as they may be entitled to.
The objections to the lien of Kelly & Smith are that the claim filed does not state when the work was done, nor when it was completed, nor “the time given.” As to the first two objections, the statute does not require that the notice of claim itself must show these facts. It is sufficient if the claim is filed by original contractors within 60 days after the completion of their contracts, and by subcontractors within 30 days after the completion of the building, furnishing of the material, etc. Section 14, c. 276, Laws 1883. It would doubtless be convenient to have these data appear on the face of the claim, but it is not required, and, if it is filed within the time specified by the law, the fact may be shown on the trial. The words “time given,” as used in the last-mentioned section, are ambiguous. They may mean the time fixed for the completion of the work, or the time given for the payment of the work. But it is unnecessary for us to determine which is the correct interpretation of these words at this time, for the case shows that no time was fixed by the verbal contract made with Kelly & Smith within which the work was to be done, and consequently none could have been stated in the notice of claim. And if those words refer to the time given for the payment of the money, then it is sufficiently stated, as the lienors specified that the work was to be paid for in cash when done. We are therefore of the opinion that both Kierst and Kelly & Smith had valid liens on the premises in question.
■ But the amount due Kierst under his lien presents a much more serious question. The referee has specifically found the amount due him for extra work. He further finds that Kierst substantially complied with his principal contract to a certain point, and was ready and willing to fully perform it, but was prevented from soedoing by the appellant; and then finds that the whole contract price was due him by reason thereof, without regard to the work or materials actually furnished under it. Appellant’s acts in preventing the completion of the contract relieved Kierst from fully performing it, and gave him a right to claim a lien for the work actually done and materials furnished. Fallon v. Lawler, 102 N. Y. 228, 6 N. E. Rep. 392; Kingsley v. City of Brooklyn, 78 N. Y. 200. The case was tried on the theory that where the contractor is ready and willing to fully perform, but is prevented from doing this through the fault of the other contracting party, he is entitled to the full contract price, although the work was not finished. This rule of law cannot be applied in a case like the present. The action is to foreclose a mechanic’s lien acquired under the acts before referred to. These statutes, as the prior ones on which they were founded, simply provide additional security to the laborer and ma