103 A.D. 567 | N.Y. App. Div. | 1905
This is an action to foreclose a mechanic’s lien. The plaintiffs, appellants, were partners, and on the 5th day of December, 1901, they made two contracts in writing with the respondent Schaefer, by one of which they agreed to furnish a specified quantity of shingles for the construction of a single family house for the sum of $632.27, payable as follows : $316 “ when fully inclosed and roofed,” and $316.27 ‘ when all is delivered and house finished and by the other they agreed to furnish a specified quantity of lumber for the construction of a double family house. The respondent Schaefer at the time owned a tract of land on the easterly side of Cottage Grove avenue, having a frontage of about 111 feet on the avenue and extending in depth on one line about 150 feet and on the other about 140 feet, the side lines approaching to such an extent at the rear that the parcel is described as triangular rather than a parallelogram. This parcel of land appears to have been subdivided, on paper at least, into three lots, known as Hos. 317, 318 and 319. The contracts were separate and the premises upon which the material was to be used is not designated therein, but it appears from the evidence that the single house was constructed on lot Ho. 318, and that the owner commenced the construction of the double house on lot 319. The plaintiffs performed no labor upon any lot and furnished no material upon the second contract relating to the construction of a double family house. They, however, delivered all of the material embraced in the contract for the single family house with the exception of the shingles for the mansard roof, which were of the value of $191.95. The single house was voided and roofed with the exception of the mansard roof, for which the shingles were required. The plaintiffs sought to excuse their failure to deliver the shingles upon the ground
The appellant Hookey filed a lien on the 15th day of February, 1902, against the entire tract describing the same as one parcel, known, however, as Eos. 317, 318 and 319 on a diagram forming part of the lien. The preliminary statement in his notice of lien stated that he had and claimed a lien for the principal and interest “ of the price and value of the labor and material hereinafter mentioned, upon the house, building and appurtenances, and upon the lot, premises and parcel of land upon -which the same may stand or be intended to stand, hereinafter mentioned.” The notice of.lien further shows that he was employed by the owner to furnish materials and that he did furnish materials consisting of lime, brick, cement and other building materials of the agreed price of $472.43, and that the whole amount remained unpaid. The evidence showed that this appellant, pursuant to a contract with the owner prior to the
It is further contended that this notice of lien is invalid because it was filed against the entire tract embracing the three lots. It does not appear that there was any separate contract for furnishing material to be used on the different lots, nor does it appear that the owner held title to the lots by virtue of separate conveyances or descriptions, or that they did not in fact constitute but a single parcel. In these circumstances the law permits a lien to he filed against the entire tract. (Hall v. Sheehan, 69 N. Y. 618.)
It is claimed, however, that the appellant Hookey was not entitled to a lien for the reason that he had taken a note for part of the claim and agreed to a further extension of time of payment. It appears that he sold the material to the owner on a credit of thirty days from delivery; that the material was all delivered between the 20th day of November, 1901, and the 14th day of January, 1902, so that the purchase price had become due and payable according to the original contract before the lien was filed; that on the 20th day of January, 1902, he took a note from the owner for $457.38, the value of the material furnished prior to the eleventh day of
The appellant Furlong, on the 15th day of February, 1902, filed a lien against the premises, describing the same as a single tract, for labor performed and to be performed, and materials furnished and to be furnished in covering the roofs of two houses “ being erected upon said premises” at the agreed price and value of $940, and specified that labor and material of the value of $500 had been performed and furnished, and that the amount unpaid was the contract price of $940. It is contended that this notice of lien is invalid for the reason that it does not specifically state the value of the labor and material remaining to be performed and furnished. This criticism, however, is purely technical. The notice states the entire contract price and that labor and material to the extent of $500 had been performed and furnished, and it is merely a mathe
It is also contended that the lien is invalid because it does not state separately the value of the labor and material furnished. That, however, is not required by the statute. It is a sufficient compliance with the statute to state the value of the labor and material performed and furnished as one item and the labor and material to be performed and furnished as another.
This appellant gave evidence tending to show that he furnished and performed upon the premises material and labor of the actual value of $490.80 in the erection of the building on lot Ho. 318 pursuant to a contract with the owner by letter in writing on the 1st day of H ovember, 1901, which she accepted on the same day, “ to cover the roofs of houses as per plan * * * for the sum of nine hundred and forty dollars. Payments to be made as the work progresses.” The owner contends that this appellant having failed to show entire performance of the contract was neither entitled to a lien or to recover a personal judgment. It appears that after performing labor and delivering material to the extent and value of $450, according to the contract price, he demanded a partial payment on account and that this demand was refused. We are of opinion that this was a breach of contract on the part of the owner which excused the appellant Furlong from proceeding further with the work. The contract was quite indefinite as to the amount to be paid as the work progressed, but it is manifest that the fair construction thereof required the owner to make some payment reasonable in amount when the work was substantially half completed. Omissions in the work do not in these circumstances preclude a recovery for the value of the material furnished and work performed. The contract with this appellant was entire as to the two houses. There appears to have been no separate agreement concerning labor and material to be performed and furnished on the separate lots. We are of opinion, therefore, that he had a right to treat the lots as a single parcel as he did and that his lien was valid and should have been allowed. His lien and claim were also dismissed, with costs.
The owner has been awarded three separate bills of costs, one against the plaintiffs and one against each of the other appellants. If the appellants had failed to sustain their liens or their right to
It follows, therefore, that the judgment should be reversed and a new trial granted, with separate bills of costs to the appellants appearing separately to abide the event.
Van Brunt, P. J., Patterson, Ingraham and McLaughlin, JJ., concurred.
J udgment reversed and new trial granted, with separate bills of costs to the appellants appearing separately to abide event.