96 N.Y.S. 533 | N.Y. App. Div. | 1905
Tliis action was brought to foreclose a mechanic’s lien, and the appellant -Goffe was made a party defendant as a subsequent lienor. He interposed an -answer demanding judgment for the foreclosure of his lien, which was served upon the defendant Heckscher as the owner of the property .subject-to the-lien. The court at the trial dismissed the counterclaim set up in the answer and directed judgment in favor of the -defendant Heckscher as against the defendant Goffe, and awarding the defendant Heckscher costs against Goffe, and from the judgment entered upon that decision the defendant Goffe appeals.
It seems that Perez M. Stewart was the owner of the premises in question, upon which he was engaged in constructing a dwelling house,, and that on tlie 30th of'September, 1902, he entered into a contract with a copartnership composed' of the defendants Goffe and Schubert, for the performance of certain work and labor and the furnishing of materials in the. construction of the building then in course of erection upon the premises ; that Goffe and Schubert entered into the performance of this contract, performing a part of the work under said agreement before the 26th day of January,, 1903, and subsequently, completed their contract j that. Goffe and. Schubert were paid for all work done prior to the 26th. day of January,'1903, and the lien -that they filed was for work done and materials furnished between, the 26th of January and the latter part of June, 1903, when their contract was completed; that this work Was all done under the original contract made between Goffe and Schubert and Stewart on September 30, 1902 j that on Hovember 28, 1902, Stewart entered into a contract by which he- -agreed to-convey the -premises to the defendant Heckscher forx$235.,000, ¡and subsequently on the 26th day of January, 1903, in pursuance of' .this- contract, he delivered to the defendant Schubert, a deed by which the premises were duly conveyed to said Heckscher pursuant' to the Contract of Hovember 28,1902, which deed was duly recorded on the same day. By the contract of Hovember twenty-eighth the defendant Heckscher was to pay the sum of $25,000 in cash on the execution of the agreement, $120,000 in cash on the delivery of the deed, $15,000 in cash on the completion of the building upon the premises conveyed, $-70,000 by conveying to Stewart a piece of
The court found that the defendants Goffe and Schubert knew of the conveyance to the defendant Heckscher on the 26th of January, 1903, and knew that Stewart was doing work in the construction of the said buildings during the period from January 26, 1903, to the latter part of the month of June, 1903, under an agreement with the defendant Heckscher for the completion of the said building; that the defendant Heckscher never requested the .defendants Goffe and Schubert to perform any part of the work done by them, nor did the defendant Heckscher at any time consent to the performance of said work and labor or the delivery of materials by the said Goffe and Schubert, or either of them; that by an assignment in writing, . dated the 24th- day of December, 1904, the defendant Schubert duly assigned all his right, title and interest in said agreement with the defendant Stewart for the performance of the work aforesaid to the defendant Goffe, and that the said defendant Goffe is the sole person entitled to claim under said agreement; that the defendants Goffe and Schubert, constituting the Schubert Ornamental Iron Works, filed a notice of lien against the premises on the 18th of July, 1903, in the sum of $2,401.50 for work and labor
The contract upon which the appellants Goffe and Schubert did their work for which they hied this lien was made with Stewart, not as a contractor to erect this building, but as the owner of the property upon which he was erecting the building. Goffe and Schubert thereby became principal contractors to do the work required by their contract, and proceeded to perform it. They were entitled under'tbeir contract to the consideration for the work, labor and materials furnished which the contract provided they should receive, and upon the performance of their contract they were entitled by law to a lien upon the premises upon which the work was done. They were bound to complete that contract irrespective of any agreement that was made by their contractor with any other person. If, after the conveyance by Stewart to Heckscher of this property, Goffe and Schubert had refused to comply with the contract because Stewart had sold the property to Heckscher, they would have been liable to Stewart for a breach of the contract. Ho arrangement between Stewart and Heckscher could affect their rights and obligations to complete their contract and their right to enforce payment of the amount that was due to them by any of the remedies given to them by law. Assuming that they knew that Stewart had conveyed the premises to Heckscher, and had agreed to complete the building thereon, there was nothing in this contract that released Goffe and Schubert from their obligation to complete their contract, or in any way changed their relations with Stewart in relation to the property, and without their consent they could not be placed in the position of being subcontractor and thus lose the right which the law gave them of securing the payment of the amount due to them on the performance of the contract by obtaining a lien upon the premises upon which the work was done.
By section 3 of the Lien Law (Laws of 1897, chap. 418), “ a contractor, sub-contractor, laborer or material man, who performs labor or furnishes materials for the improvement of real property with the consent or at the request of the owner thereof, or of his agent, contractor, or sub-contractor, shall have a lien for the principal and interest of the value, or the agreed price, of such labor or materials
Goffe and Schubert were contractors who performed labor and furnished matérials for -the improvement of this property; they did so under an- express contract with the owner thereof. It is not disputed hut that Goffe arid Schubert would have been entitled to file a lien upon this property had Stewart remained its owner. Stewart conveyed the property to Heckscher, and Heckscher thereupon became the owner. The building upon the property was then uncompleted, and. Goffe and Schubert were engaged in'the completion of a contract which was recpiired to complete the building. Stewart made a contract with Heckscher, by which Stewart agreed to complete the building in conformity with the. specifications, and • contracts made by Stewart with the former contractors. Thus, the completion of the building was with the consent and at the request of Heckscher, as- evidenced by his contract with Stewart. The contractors who had beeri engaged in the completion of the building proceeded with their Work under their several contracts. When Heckscher took title to the property and became its Owner, .and made ah agreement with Stewart that he would complete the building according to the existing contracts,, he in effect requested and .consented that the contractors proceed with their contracts. The case is thus brought within the provisions of section 3 of the "Lien Law as the work, was done and the materials, furnished with the consent or at the request of Heckscher after he became the owner.
In- considering this section of the Lien Law the Court of Appeals in Rice v. Culver (172 N. Y. 60.) said :. “ There is a marked distinction between the passive acquiescence of an owner in that he knows the'improvements are being made, improvements which' in many cases he has no right to prevent^ and his actual and express consent or requireinent that the improvement shall. be made. It is the-latter that constitutes the consent mentioned in the statute; To fall within that provision the owner must either be an affirmative factor in procuring the improvement to be made, or having' possession and control of the premises assent to the improvement in the
My conclusion, therefore, is that this work was done by Goffe and Schubert under a contract made with the owner of the premises ; that after Heckscher became the owner the contract made between Goffe and Schubert and Stewart as owner of the premises was completed by Gpffe and Schubert with the consent or at the request of Heckscher, who was the owner, and that under section 3 of the Lien Law Goffe and Schubert had the right to subject the premises to a lien for the balance of the work done by them.
It follows, therefore, that the judgment appealed from should be reversed and a new trial as to Goffe and Schubert ordered, with costs to the appellants to abide the event.
O’Brien, P. J., Clarke and Houghton, JJ., concurred; Patterson, J., dissented.
Judgment reversed and new trial ordered as to Goffe and Schubert, with costs to appellants to abide event.
Lien Law; art. 1..—[Rep.,