38 N.Y.S. 461 | N.Y. App. Div. | 1896
The plaintiff, in September, 1889, entered into a contract with the defendant Jones, by which the former 'was to construct a dwelling house for a specified sum. In December of the same year the plaintiff entered into a contract with the defendant, the' tile company, whereby the latter was to furnish the trim' and 'cabinet work for the house, but not to set them in. place, for the sum of $4,946. Shortly after the house was finished or claimed to be finished the plaintiff filed a mechanic’s lien for the balance due him on his contract with the defendant Jones and for certain extra work, and the defendant, the tile company, filed its lien for the unpaid balance claimed to be due it from the plaintiff. Thereafter the plaintiff brought this action to enforce his lien.. In his complaint he alleged that the tile company had failed to complete its contract with him, by delay in time of performance and by furnishing him improper and defective materials; that by such breach plaintiff had been damaged in a sum greater than the balance due the tile company on the contract, and as against it prayed that the lien filed by the tile company be discharged.. The tile company answered, asserting the validity of its lien. The defendant Jones answered denying that the plaintiff had completed his contract and also counterclaiming for damages for delay and defective work.
The action was tried before a referee, who found that the plaintiff had substantially performed his contract for the construction of the ■house, but allowed the defendant Jones as a set-off $1,390^1 damages for the delay in the performance of the contract. As between plaintiff and the tile company the referee decided that the tile company substantially performed its contract, but that it delayed in such performance and prevented the plaintiff from performing, in time, his contract with Jones. He, therefore, allowed the plaintiff, as a set-off against the tile company, the same sum allowed Jones against the plaintiff. The referee further found that some of the material furnished by the tile company was defective, which necessitated its being taken out and the work being done over, and also that the tile company did not make proper deliveries of the material, and that on account of such course the plaintiff’s workmen were compelled to lose time in setting the woodwork up. For this last breach the referee allowed the sum of $1,620. The aggregate
The notice of appeal taken by the tile company is directed only to the plaintiff, and was not served on the defendant Jones. As the defendant Jones, the owner of the property affected by the lien, is not a party to this appeal, we do not see how it is possible to reverse the judgment, in so far as it voids the lien filed by the tile company. By neglecting to make him a party to this appeal it has lost its right to reinstate.the lien, even if the judgment below is erroneous. The Mechanics’ Lien Law (§ 15) provides that in any action brought to foreclose the lien if the party fails for any reason to establish the lien, he may, nevertheless, recover therein on the contract such sum as may be due him. As the question of the liability of. the plaintiff to the tile company, on the contract between them, could be determined and was actually litigated on the trial, the judgment herein would conclude the tile company in any subsequent action. We think, therefore, it has the right to prosecute this appeal and have the judgment reviewed, even though it cannot regain, its lien.
The first point to be disposed of is the plaintiff’s claim that the appellant failed to obtain a certificate from the architect as to the completion of its work, which was required by the contract. The referee has found that the appellant did substantially perform its contract. The architect, upon the completion of the building, gave a certificate to the owner that the plaintiff liad performed his contract for the construction of the house. It is true, as claimed by the plaintiff, that this certificate did not necessarily imply a certification that the appellant had fulfilled its contract with the plaintiff, for non constat but that the plaintiff himself furnished the trim necessary for the construction of the house. But when the appellant applied to the architect for its certificate, the architect declined upon the ground that he had given a certificate to the owner and that was all that was requisite. This was an unreasonable refusal on the part of the architect, if, as a matter of fact, the appellant had performed its contract, and this the referee has found. Such refusal dispensed with the necessity of producing a certificate.
The appellant claims that, conceding it was in default in respect to time of performance, an improper rule of damages was held against it. We think not. Though the evidence does not show that the defendant was informed of the time within which the plaintiff, under his contract with J ones, was bound to construct the house, still it abundantly appears that he knew that the plaintiff had a contract for such construction. He also knew that the materials were for this particular house; that they were not such as could be supplied in the market, but had to be got out, fashioned and formed in accordance. with special designs. Under this state of facts the case falls directly within the rule of Booth v. Spuyten Duyvil Rolling Mill Co. (60 N. Y. 487), and the appellant was bound to indemnify the plaintiff against any damage he might suffer under his contract with Jones. There is a further answer to this claim of the appellant. It knew that its delay in furnishing the material contracted for would necessarily delay the completion of the house, and had there been no contract between plaintiff and J ones, but the plaintiff had been the owner of the property, we cannot see- why the rule of damage adopted by the referee would not have been entirely fair and applicable.
The judgment appealed from should be reversed, except so far as it cancels the lien of the appellant, and a new trial ordered on the issues between the plaintiff and the appellant, costs to abide event.
All concurred.
Judgment reversed, except so far as it cancels the lien of the appellant, and a new trial ordered of the issues between the plaintiff and the appellant, to be tried before a new referee, costs to abide event. '■