95 N.Y.S. 144 | N.Y. App. Div. | 1905
On the 14th of August, 1902, the Monroe Eckstein Brewing Company entered' into a written contract with Gustav Penet. for the construction of a building at arvagreed price of $6,000, payable in thre’e installments of $1,400 each, with a final payment of $1,-800.
' This contract provided that payments should be made only upon the certificate of the architect. The plaintiff in this action was a sub
We are clearly of opinion that the learned court at Special Term did not err in the disposition of this case. Section 11 of the Lien Law (Laws of 1897, chap. 418) provides for service of a copy of the notice of lien upon the owner of the premises at any time after the filing of' the notice of lien, and it is specially provided that until “ service of the notice has been made, as above provided, an owner, without knowledge of the lien, shall be protected in any payment made in good faith to any contractor or other person claiming a lien.” There is no question here that the defendant brewing-company owed the amounts for which the checks were written and delivered under the contract, and we know of no rule of law. which would charge one with bad faith for the mere payment of claims which were concededly due under a contract. The good faith required by the statute does hot relate to the diligence of the owner in learning of the filing of notices of liens ; the duty of giving notice to the owner is charged upon the lienor, and the matter of good faith relates to the validity of the indebtedness paid, rather than to the question of whether the notice of lien has been filed or
The further contention of the plaintiff that he was orally promised' payment in the event of his going on and completing his contract Avith the original,contractor by the defendant brewing company is without force; it was at most a promise AAdthout consideration, and one void Under the Statute of Frauds because it Avas not in Avriting. (See Pers. Prop. Law [Laws of 1897, chap. 417], § 21.) After a careful consideration of the various points urged on behalf of the appellant, we are.convinced that the case has been disposed of according to law, and that the appeal is without merit.
The judgment appealed from should be affirmed, with costs.
Jenks, Rich and Miller, JJ., concurred; Hirschberg, P. J., concurred in result.
Judgment affirmed, with costs.