80 N.Y.S. 1078 | N.Y. App. Div. | 1903
This action was to foreclose a mechanic’s lien. Other material-men, who had filed liens upon the property, were made defendants and interposed answers claiming as against the plaintiff that their liens were entitled to a preference. The referee found that there was due and owing from the defendant Schile, the owner of the building, the sum of $4,446.40, with interest; that the defendants Hough, Pfotenhauer and Dyer had filed liens affecting the premises; that these defendants were entitled to be paid the amount due upon their respective liens out of the amount due from Schile, and that the plaintiff was entitled to the balance of the amount due upon the contract, and from the judgment awarding this priority the plaintiff appeals. No question is made as to the validity of these several liens and the owner of the premises does not appeal.
It appears that in August, 1898, Henry J. Schile, the owner of the property, entered into a contract with one Webster White to erect a building upon the premises in question, by' which contract White agreed to complete the work covered by the contract on or before November 15, 1898, and agreed to pay a certain penalty for each and every day after that day until the whole of the work was fully completed as liquidated damages, payments to be made in six installments as the work progressed, the total amount to be paid under the contract aggregating $7,173. The contract further provided that if at any time there should be any liens or claims for which, if established, the owner of the premises might become liable, and which are chargeable- to the contractor, “the owner shall have the right to retain out of any such payment then due, or thereafter to become due, an amount sufficient to completely indemnify him against such lien or claim. Should there prove to he any such claim after all payments are made, the contractor shall refund to the owner all moneys that the latter may be compelled to pay in discharging any lien on said premises made obligatory in consequence of the contractor’s default.” To secure the performance of that contract, White (the contractor) and the plaintiff executed a bond in the penalty of $10,000, conditioned upon White’s performance of all the conditions and covenants on his part to be kept and performed in said contract, and upon the obligors indemnifying and holding harmless the owner from all dam
After the execution of this contract the plaintiff went on with the work, taking it up at the point at which White had left it and completed the building as provided for in the contract, whereupon there became due to him under the contract the. sum for which he filed his lien, which was sought to be foreclosed in this action. Before the plaintiff had filed -his lien the defendants before named, who
It follows that the judgment appealed from must be affirmed,, with one bill of costs against the appellant.
McLaughlin, Hatch and Laughlin, JJ., concurred; Yah Bbunt, P. J., dissented.
Judgment affirmed, with one bill of costs against the. appellant..