18 N.Y.S. 359 | New York Court of Common Pleas | 1892
This is an appeal by defendants Jones and Jackson from a judgment of this court entered upon the report of a referee, in an action to foreclose a mechanic’s lien filed December 4, 1888, by Mull & Frommer, subcontractors, for plastering work, etc., under Bowers & Vreeland, contractors with Henry M. Jones, owner, for altering a certain building in the city of Hew York. The plaintiffs were to receive $587 for their work when it was all completed. At the time of the filing of their lien all was completed, with the exception of pointing up the plastering after the other mechanics had left the building, an item which involved an expense of $27.55. The performance of this under the plaintiffs’ contract was prevented by the abandonment of the work by the contractors Bowers & Vreeland after the lien was filed; but it was afterwards done by plaintiffs, at the request of the owner, who finished the building himself at a cost of $847.92, which' was less than the final payment coming to Bowers & Vreeland, and left a balance in the owner’s hands of $237.08, to which extent the referee held the plaintiffs’ lien established against the property. The owner and the contractor’s assignee object to this decision on the grounds (1) that all of plaintiffs’ work was not performed, and therefore nothing was due them when the lien was filed; and (2) that no lien was acquired because the notice untruthfully stated that all the work had been performed.
It is not necessary that the work for which the lien is filed should be completed at the time of filing the notice. A lien will be acquired if the notice
It is argued, however, that the effect of the filing of the lien before the time of payment matured, with a statement that the whole amount was due and owing, was to destroy the credit of the contractor, and induce the filing of other liens, force him to abandon his contract, and throw the burden of ■ completing the work upon the owner. There is no finding to that effect, but, at all events, the argument is of no force. The filing of the lien does not excuse the contractor from going on and performing his contract, which the law presumes his ability to do;' and, so far as the owner is concerned, he has suffered inconveniences from the default of his own contractor, and not of the plaintiffs’, and is besides not damaged, for he has been allowed the full cost of completing the work, the plaintiffs’ lien attaching to the balance only of the money unpaid upon his contract. As to the contention that, as the plaintiffs were not entitled to payment until the pointing up had been done, upon the principle that there was no performance of the contract while anything remained undone which it was the duty of the contractors to do, (Watts-Campbell Co. v. Yuengling, [Sup.] 3 N. Y. Supp. 869,) the referee could not find there was anything due them at the time of the filing of the lien, this is, in effect, disposed of by the conclusion already reached, that the facts war