Uvalde A. Paving Co. v. . City of New York , 191 N.Y. 244 ( 1908 )

In this action to foreclose a mechanic's lien the plaintiff has recovered a judgment, adjudging that it had a "valid lien on the moneys due from the city of New York to the defendants, Sigretto and Mannino", and awarding a personal judgment against them for the whole amount claimed. The notice of lien filed by the plaintiff described its claim in this way: "Cash advanced for labor and materials furnished, to wit: Asphalting the openings, (for certain sewer work in Brooklyn), supplying broken stone and cement and the agreed price and value thereof is $3,578.65". It was conceded, in effect, that of that sum $2,500 represented moneys advanced to the appellants by the plaintiff, in order that they might execute their contract with the city. The balance was due to the plaintiff for furnishing asphalt. At the trial, upon evidence, which was admitted without objection, that the appellants agreed to assign their contract to the plaintiff, if, in addition to supplying the asphalt, the latter would make advances of moneys, the court allowed an amendment of the complaint to conform to the proof "and to allege that the defendants agreed to give assignments of the contract with the city of New York". In deciding the case, the court found as a fact that the agreement had been made to assign to the plaintiff the contract and all moneys due the appellants under it, before it made the payments for the other labor and materials, now questioned, and, as a fact, it is conclusively established by the unanimous affirmance of the judgment. The action was in equity and, under the circumstances of the case, I think it was within the discretionary power of the court to allow the plaintiff to amend its pleading. But the amendment could not operate to cure the infirmity in the notice of lien, in so far as it claimed a lien upon the fund for the cash advanced, or loaned, to the contractors. The statute gives no right to file a lien for moneys loaned. The amendment, therefore, was of no particular benefit; as it was not necessary to support a personal judgment against the appellant contractors. As the lien, sought to be created by the plaintiff's notice, was invalid, as a claim for any advances of moneys, the judgment was erroneous in decreeing a valid lien for the whole amount claimed. The importance of this error is in the possible effect upon the rights of the sureties upon the bond, which was given by the appellants in order to procure a discharge of the lien and to secure the payment to them of the moneys retained by the city. But the failure to establish a valid statutory lien, as to a part of the amount claimed, did not affect the plaintiff's right to recover a personal judgment against the appellants for the amount of their indebtedness. The appellants having refused to perform their agreement to assign their contract, equity will, as to them, regard that as done which ought to have been done and the court will decree that measure of relief to the plaintiff, which is appropriate to it as an assignee of the contract. The defendants in withdrawing the fund from the city, through the giving of the bond, took it charged with an equitable lien in favor of the plaintiff; which the court may enforce by rendering a personal judgment against them. That was a part of the equitable relief, which the court was authorized to administer in its general jurisdiction thus acquired over the parties and their controversy.

I think that the judgment should be modified by reducing the amount, for which it adjudged the lien filed by the plaintiff to have been valid against the fund, to the sum of $1,078.65 and, with that modification, the judgment should be affirmed; without costs to either party.

CULLEN, Ch. J., HAIGHT, VANN, WERNER, WILLARD BARTLETT and CHASE, JJ., concur.

Judgment accordingly.