33 N.Y.S. 343 | N.Y. Sup. Ct. | 1895
In May, 1890, the defendants, William H. Arnott & Co., entered into a contract with Rachel Oohnfield, as' owner, for the erection of a building upon her premises in the city of New York. Subsequently Arnott & Co. sublet a portion of the work to the plaintiff, the Schillinger Fire-Proof Cement & Asphalt Company. On the 19th day of January, 1891, and within 90 days after the completion of the'contract, the plaintiff filed a notice of lien in the clerk’s office of the city and county of New York, in pursuance of the provisions of chapter 342 of the Laws of 1885. Two days later, and on the 21st day of January, 1891, Arnott & Co., under subdivision 2 of section 24 of said act, deposited with the county clerk a sum of money, equal to the amount claimed in the lien, with interest to the time of said deposit, and.thereafter a suit to foreclose the lien was commenced. The suit coming on to be tried at a special term of this court in November, 1892, the plaintiff made a motion to amend its complaint, which was granted; one of the conditions being that the plaintiff should consent to Arnott & Co.’s withdrawal of the sum of money which they had deposited with the county clerk, and accept in lieu and place thereof their personal responsibility, provided they should give a stipulation to that effect, which they did, and the moneys were thereafter withdrawn. When later the suit came on for trial, a motion was made to strike the cause from the equity side of the calendar, on the ground that the defendants were entitled to a trial by jury. Section 8 of the lien law expressly provides that “the manner and form of instituting and prosecuting any such action to judgment, or an appeal from such judgment shall be the same as in actions for the foreclosure of mortgages upon real property, except as herein otherwise provided.” And it has uniformly been held, so far as we have observed, that suits to foreclose mechanics’ liens under the act of 1885, like suits to foreclose mortgages, are triable at special term. But the appellants urge that, if it be conceded that the statute authorizes the trial of such suits at special term, the act is in such respect unconstitutional. The grounds for this contention are so clearly stated and fully met in the opinion of
The appellants further contend that, in any event, their motion should have been granted, because this case is within the rule stated in Burroughs v. Tostevan, 75 N. Y. 567, and Dudley v. Congregation, 138 N. Y. 451, 34 N. E. 281, that in an action in the nature of a proceeding in rem to foreclose a statutory lien, in which case a «personal judgment against some of the parties may follow as incidental to the general relief, such judgment cannot be rendered if the plaintiff fails to establish the lien. But we do not understand that rule to be applicable to the facts of this case. This suit was brought to foreclose a mechanic’s lien, and if the lien had been invalid, or for any other reason could not have been enforced, the plaintiff, under the rule established by the authorities cited, could not have had a personal judgment against the defendants. There was no failure of lien in this action, however. On the contrary, the right to enforce it was established by the judgment, and the property was only saved from sale to satisfy the amount due under the lien, because the defendants Arnott & Co. deposited, in the first instance, with the county clerk, the sum of money equal to the amount claimed to be due in the notice of lien, with interest to the date of deposit, for which was subsequently substituted their stipulation of personal responsibility by command of the court. The deposit of the moneys did not change the character of the suit to be brought by the plaintiff. In order to recover, it was necessary for the plaintiff to establish the validity of its lien, which could only be done by a suit to foreclose it, which should result in a judgment in plaintiff’s favor. This question was before this court in Sheffield v. Robinson, 73 Hun, 173, 25 N. Y. Supp. 1098, and arose under subdivision 6 of section 24, in which case a bond was given to discharge the lien instead of a deposit of money as in this case; but the decision in that case, and the reason for it, is alike applicable to this one. As the case stood when the court required the plaintiff to accept the stipulation of the defendants to become personally responsible for the payment of any judgment which should be recovered, and permit defendants to withdraw the money to be used in their business, the plaintiff would become entitled to the moneys after it had been determined by a judgment of foreclosure that it had a valid lien, and not before or otherwise. This situation was not changed by the act of the defendants in substituting their undertaking in place of the moneys then on deposit.
Upon the merits tv ó questions were presented: (1) Whether plaintiff had substantially performed its contract with Arnott & Co.; (2) if so, whether the refusal of the architect to give the certificate of performance provided for by the contract should prevent a recovery. The first question the court answered in the affirmative, and the facts adduced, which were the subject of elaborate dis