52 N.Y.S. 168 | N.Y. App. Div. | 1898
The action is to foreclose a mechanic’s lien in behalf of the plaintiffs, who are materialmen, having furnished certain material used in the construction of a power house of the defendant cathedral. The defendant cathedral contracted with the defendants Gillis and Geoghegan, among other things, to construct a power house in connection with the cathedral. The defendants Gillis and Geoghegan entered into a sub-contract with the Mahoney Engineering Company to furnish certain materials in connection with said power house. The contract with the engineering company was to deliver on the sidewalk, in the city of Hew York, the material for which the lien is filed, for and at the agreed price of $435. Ho time of payment for the material was specified in the contract, nor was the date of delivery fixed. The engineering company contracted with the plaintiffs to furnish this material; and they having furnished the material and not being paid therefor, filed the lien which is the subject of foreclosure in this action.
The engineering company seems to have been a mere jobbing concern, represented by Frank Mahoney as treasurer and manager; but this fact does not affect the questions involved. The contract was entered into under date of January 29, 1896, and the material was finally completed and ready for delivery by the plaintiffs to the engineering company about April sixth following. It was delivered at Garden City, where the power house was being constructed, about the 1st day of June, 1896. The notice of lien was filed on July thirtieth of the same year. The engineering company, as is claimed, failed to furnish the materials as contracted for, and it having failed,
The referee has found that the contractors before making the first payment had been duly notified by the engineering company that the material was ready for delivery, and that before making the second payment such material was completed and ready for delivery. The referee further found that none of the payments were made by the contractors for the purpose of avoiding the provisions of the Mechanics’ Lien Law,
It is to be noticed that the contract specifies no time of payment, and no time for delivery of the material. By this contract, therefore, the contractors became bound to pay for the material as soon as the engineering company was ready and able to deliver the same. (Benj. Sales, §§ 706, 707; Cook v. Ferral's Administrators, 13 Wend. 285; Coonley v. Anderson, 1 Hill, 519.) It appeared in
It is quite evident, therefore, that up to the time when payments were made, the equities of the contractors were in all respects equal to the equities of the plaintiffs. Prior to the amendment of the statute in 1885, in respect of payments, the law provided that payments made by the owner to a contractor “ by collusion, for the purpose of avoiding the provisions of this act,
It is, however, claimed that the amendment to the statute applies alone to owners, and does not embrace contractors. ■ We think that this contention may not be sustained. There is no reason why such construction should obtain, and the decisions seem to place owners and contractors upon the same footing. (French v. Bauer, 134 N. Y. 548.) But assuming, however, that collusion is not an essential element, as applied to an advance payment, we do not think the result would be different in this case, as we think the plaintiffs may not take advantage of the first payment made by the contractors, although confessedly at such time the material was not ready for delivery. The defendants were in nowise prejudiced by reason of this fact, for they subsequently finished their work and shipped the material to Harden City, and did not file their lien until upwards of three months thereafter. So that in no sense were they prejudiced on account of this payment, and, therefore, the whole payments were made at a time when the engineering company had the right to demand the same, and when the constructors could not have resisted payment except by showing a breach of contract. It was said by Judge Rapallo, in Post v. Campbell (supra): “ The statutory provision was intended to protect the lienor against payments made to the contractor, or other persons, to the prejudice of the lienor; ” and in Lumbard v. Syracuse, Binghamton & N. Y. R. R. Co. (55 N. Y. 491), “A party furnishing materials or doing work, relying upon the lien given by statute for security, must examine the contract with the owner, for it is only to the extent of what is due, or to become due, upon this contract that his lien can attach. If he furnishes the material or does the work for a sub-contractor, in
The allowance for expense incurred in completing the contract of' the engineering company was properly allowed. (Lind v. Braender, supra.)
It follows that the judgment should be affirmed, with costs.
All concurred.
Judgment affirmed, with costs.
Chapter 342, Laws of 1885.— [Rep.
Chapter 478 of the Laws of 1862.— [Rep.