101 N.Y.S. 801 | N.Y. App. Div. | 1906
The appellant’s lien is filed for materials furnished a sub-contractor. The work was performed in the erection of' a high school
In the opinion at Special Term the decision was based mainly upon the case of Brainard v. County of Kings (155 N. Y. 538). The question was not discussed in that case and it was assumed that the lien could not be enforced beyond the amount due from the contractor to the sub-contractor. The rule, however, seems to have been squarely held in the case of Lumbard v. Syracuse, B. & N. Y. R. R. Co. (55 N. Y. 491), and in the case of French v. Bauer (134 N. Y. 548). (See, also, Martin v. Flahive, 112 App. Div. 347.) The statutes construed in these cases were substantially similar to the statute construed in the case at bar, and these authorities are, I think, controlling. In the French case Judge Haight, writing for the court, in part says: “ It will be observed upon reading the two acts that, whilst they differ in phraseology, they are the same in substance. The policy, as disclosed in. both, is to the effect that, except in cases of fraud and collusion, the owner cannot be compelled to pay any greater sum for the completion of his building than that which, by his contract, he had agreed to pay, and the same is true of a contractor who has in turn in good faith paid the subcontractor the amount due him after the same has become due and payable. The effect of the statute is to take from the owner the) money owing by him on his contract and to apply it in payment for the labor and materials furnished by others in the performance of
All concurred, except Kellogg, (f., dissenting; Cochrane, J., not sitting.-
"Judgment affirmed, with costs.