38 N.Y.S. 869 | N.Y. App. Div. | 1896
The action was brought to foreclose a mechanic’s lien filed by the plaintiff on the 15th day of June, 1888, for building materials sold and delivered to William J. Merritt & Co., which were furnished to and used by Merritt & Co. in the erection of forty-one houses on Seventy-third street, near West End avenue. The plaintiff alleged that sixteen of these houses had been sold to the defendant, The Seventy-third Street Building Company, but that the transfer to them was in fraud of the creditors, and judgment was asked, among other things, that the conveyance from Merritt to the Seventy-third
The referee directed a personal judgment against Merritt & Co. for the value of the materials sold to them, and from that portion of his decision and the judgment entered on it, no appeal has been taken.
He also found that materials, of the value of $1,244.51, out of those delivered to Merritt & Co., were delivered for and used in the sixteen houses which had been conveyed to the Seventy-third Street Building Company, and that the transfer by Merritt to that company of the property upon which those buildings stood was made with intent to defraud the plaintiff of his right to file a lien upon the said premises and to make the lien ineffectual, and he directed judgment establishing a lien for the amount of $1,244.51, with interest, upon those premises, and directing that the premises be sold to pay it, and from that portion of the judgment this appeal is taken.
The sixteen houses which were conveyed to the Seventy-third Street Building Company, and which were held by the referee to be subject to the lien for materials which had been filed by the plaintiff, were situated on the northeast corner of West End avenue and Seventy-third street. Upon that corner there were eighteen houses which were in process of construction by Merritt & Co. Sixteen of these were conveyed to the defendant corporation. The referee finds that materials were furnished and used by the plaintiff for building those houses to the value of $1,244.51.
The first question is whether or not that finding is warranted by the evidence. The material making up this sum of $1,244.51 consists of sashes and blinds, valued at $688.80, ash ceiling and wainscoting, valued at $310.19, and flooring, valued at $244.92.
It appears from the testimony, as has already been stated, that Merritt & Co. were constructing these eighteen houses at one time ; that these houses were all in one block and were being constructed substantially in the same way, and were about in the same stage of completion. The sashes and blinds for these houses were special sizes, ordered particularly for them, and which could be used
The next item was $310.79 for ceiling and wainscoting, which was delivered from January 27 to April 16, 1888. The proof of the delivery of this material depends upon the testimony of Eickhoff,
The proof as to the flooring stands entirely upon the testimony of one Griffin, who says that he delivered the flooring to Merritt & Co., but he is unable to tell just where he delivered it; nor is there any evidence whatever that it was used in these particular-houses. For that reason the flooring was not properly chargeable to these houses, and the value of the flooring, which was $244.92,. should also be deducted from the amount which has been charged against the defendant’s houses. The amount so to be deducted is $279.39 as of the 23d day of May, 1888, and the judgment is to be modified so that the amount of the lien which the plaintiff' is held to have upon the sixteen houses conveyed to the defendant corporation shall be fixed at $965.12, with interest thereon from the 23d of May, 1888, instead of $1,244.51.
The lien was filed on the 15th day of June, 1888, and there is no-question but that some of these materials were furnished within ninety days of that time.
We have examined the testimony tending to show that the transfer
We have examined the other points raised by the defendant’s counsel and are satisfied that none of them were well taken. The result of our examination is that the judgment must he modified by fixing the amount of the lien to which the plaintiff is entitled against the sixteen houses conveyed by Merritt to the defendant, at $965.12 as of the 23d of May, 1888, and as modified must be affirmed, without costs.
Van Brunt, P. J., Williams, O’Brien and Ingraham, JJ., concurred.
Judgment modified as directed in opinion, and affirmed as modified, without costs.