140 N.Y.S. 50 | N.Y. App. Div. | 1913
The action by a sub-contractor is to foreclose a mechanic’s lien, notice whereof was filed on February 27, 1911. But on the previous January and February seventeenth the owner had paid the contractor two sums aggregating $450, and the obligation of the contract released, although $125 was reserved by the owner to meet the expense of laying the sidewalk when suitable weather should permit it to be done. But the plaintiff invokes section 7 of the Lien Law (Consol. Laws, chap. 33 ; Laws of 1909, chap. 38) and asserts that the payments were ineffective to avoid his lien, inasmuch as they were not payable until the completion of the work, and hence not until the sidewalk should be laid. To sustain this contention the plaintiff must prove that the payments were accelerated “for the purpose of avoiding the provisions of” the Lien Law. To maintain that issue the plaintiff proved the owner’s knowledge of the lien before the payment. Indeed, such knowledge was deemed sufficient evidence of purpose to avoid the lien in Wolf v. Mendelsohn (87 N. Y. Supp. 465 [App. Term]) and in Behrer v. McMillan (114 App. Div. 450; affd., sub nom. Behrer v. City & Suburban Homes Co., 191 N. Y. 530), although the lien in the last case was not sustained. This would construe the section to read that advance payments made with knowledge of a sub-contractor’s unpaid claim are ineffective against a notice of lien subsequently and duly filed. Such holding disregards the purpose or intention with which the payments are made, while the statute has sole regard to that. It was not intended to disable
The judgment should be reversed and judgment should be entered dismissing the complaint, with costs.
Jenks, P. J., Oaee, Woodward and Bioh, JJ., concurred.
Judgment of the County Court of Queens county reversed and complaint dismissed, with costs.