Lutz v. Ey , 3 E.D. Smith 621 ( 1856 )

Ingraham, F. J.

The plaintiffs are claimants under the mechanics’ lien law for work, labor and materials, done and furnished for buildings belonging to the defendant.

The notice filed to create the lien stated the amount of the claim, for what the claim was made, the person against whom the claim was made, that the defendant owned the buildings, and their location by the street and number.

The defendant objects to the sufficiency of such notice, because it does not state whether the plaintiffs were contractors, sub-contractors or laborers. The statute does not distinctly require that the notice should contain such an allegation, although it is undoubtedly better that the character of the party doing the work should be alleged. The statute directs what shall be specified in the notice, and the present notice contains everything therein required, and is, I think, in that respect sufficient.

But even if it be held otherwise, there is enough in the present notice to disclose the relation of the plaintiffs in doing the work. They state that they performed the work and furnished the materials in pursuance of contracts made for the erection of the buildings, and in the absence of any allegation that they did the work for other contractors, I think the fair presumption is that they, as contractors with the owner, did the work directly for him.

It is also objected to the notice that the same does not aver that the work was done within six months.

This cannot be material to be stated in the notice. It is matter of defence, and the defendant can be relieved even on motion from a lien which is filed after six months from the time of doing the work; or he may set it up as a defence at the trial. It can do no good to state it in the notice, because the rule is not that the notice is to be made out but served within six months after doing the work; and even if the notice stated that the work had been done within six months from the date of the notice, the same difficulty would exist as now, because it is not making out the notice but serving it on the county clerk, that creates the liability.

There is no foundation for the objection taken to this notice.

The defendant also objects that the performance of the contract is not proven, and therefore no liability was incurred by the defendant.

The referee has found that the buildings were erected substantially in conformity with the agreement, with certain exceptions and alterations caused by the neglect of the defendant to make the excavations properly, which he was bound to do, or by the express directions of the defendant to make certain alterations therefrom. He also finds that there was extra work done by the plaintiffs amounting to $230, and that the deficiencies on the part of the plaintiffs amounted to $235 63, which amount is allowed to the defendant by the referee.

Upon contradictory testimony as is furnished in this case, this court cannot on appeal interfere with the finding. The evidence is such as to warrant a finding either way, and where that is the case we are concluded by the referee’s report.

There is more ground for objection to the fact which appears by the referee’s report that the plaintiffs did not do all the work they contracted to do. I am free to admit that, in my judgment a better rule than now exists, and one more consistent with the principles of law, would be to hold that a party claiming to be paid for performing a contract should be required to show such performance before he is entitled to payment therefor. If the question was a new one, I think no lawyer would hesitate in saying that such a rule was the only proper one to enforce, and yet in deciding upon builder’s contracts, a different rule appears to have been gradually sanctioned by the courts, and instead of forfeiting all payments until the work has been completed, the courts have been led by the hardship of individual cases to sanction a reduction for deficiencies where the contract has been mainly completed,-or where the facts will warrant the presumption, that the work has been accepted by the owner. I cannot say that the rule is proper, but I feel bound to yield to the force of the numerous decisions which have been made on this point, and think them appropriate to the present case.

The plaintiffs could not recover for any work not stated in the bill of particulars, and in this respect the referee erred in allowing for wooden platforms, extra leaders, and bringing Croton water into the house. The amount allowed for these, being $53 25, must be deducted from the judgment.

The remaining objection is that by the contract the plaintiffs agreed to take the note of the defendant, payable in one year, with a satisfactory indorser. There is no allegation in the answer that such note was ever given ; on the contrary, the whole defence consists in denying that the plaintiffs have performed their work so as to entitle them to any payment. The time of credit has long since expired, and had so expired at the commencement of the suit. The mere agreement to receive the note in payment did not deprive the plaintiff of his right to bring the action, if such note was not delivered in payment when due, and the refusal to pay on the part of the defendant, warranted the plaintiffs in bringing an action for the whole amount. I think, however, the plaintiffs were not entitled to interest on the $1000 for which they had agreed to take a note until the time for which the note had to run had expired, and that one year’s interest should be deducted from the amount reported due on this account.

My conclusions are that the sums of $53 25 with interest from May 1, 1854, and the sum of $70, should be deducted from the amount reported due, and the judgment should be affirmed for the residue.