33 N.Y.S. 398 | N.Y. Sup. Ct. | 1895
In this action, brought for the foreclosure of a mechanic’s lien, and resulting in a judgment for the plaintiffs, the grounds, among others, urged for reversal, are that there is no evidence to support the finding that the plaintiffs performed their contract, or that the defendant ever accepted what the plaintiffs did as a full and complete performance thereof, either of which it was essential to prove, to entitle the plaintiffs to the judgment. The plaintiffs were subcontractors of the Wallis Iron Works, under a contract made by the latter with the J. L. Mott Iron Works to do certain work on a boiler house. As to whether the subcontractors completed their work, there was some evidence tending to show that they completed it in the latter part of November, 1891, one of the plaintiffs testifying: “I saw this work after it was completed; saw that it was completed.” Upon the question of whether it was accepted or not by the Wallis Iron Works, we have the letters of the latter written to the J. L. Mott Iron Works, in one of which they state that their superintendent visited the works, and “the work was all finished and in first-class condition.” And, in answer to the complaint of the J. L. Mott Iron Works that it was not properly or completely finished, the second letter was written by the Wallis Iron Works, in which they say, “Upon investigation, we find that the trouble is not due to any neglect on our part, but is caused by putting the steam pipes through the roof by other parties, after the completion of our work.” These questions of fact, therefore, having been resolved in plaintiff’s favor, such findings should not be disturbed where, as here, they cannot be said to be against the weight of evidence, or that the evidence was so clearly preponderating in defendant’s favor as to justify with reasonable certainty the conclusion that the court below erred.
The only additional question pressed upon our attention is the claim that the judgment is erroneous, in that it assumes to aw'ard both judgment for the enforcement of a lien and a personal judgment against the Wallis Iron Works. It is doubtful if the question is before us for review, because no exception was taken to the form of the judgment, either at the time of entry or subsequently. But, upon the merits, we do not think the contention is good. The statute reads:
“Whenever, in any action brought under the provisions of this act, any claimant shall fail for any reason to establish a valid lien, he may nevertheless recover therein judgment against the party or parties to the action for such sum or sums as may appear to be due to him and which he might recover in an action upon a contract against said party or parties.” Laws 1885, c. 342, § 15.
The construction sought to be given to this section by the appellant is that the only case in which a claimant can recover such a judgment as he might recover in an action upon a contract is where he fails to establish a valid lien, and that where there is a judgment upholding the lien, as valid, in that case no personal judgment can be granted. Such a construction, we think, is too narrow.