H. W. Caldwell & Son Co. v. Spencer Kellogg Co.

Majority

p. 618

H. W. Caldwell & Son Company, Respondent, v. Spencer Kellogg Company et al., Appellants, and Riverside Bridge Company et al., Respondents, Impleaded with Others.

Headnote

Caldwell & Son Co. v. Kellogg Co., 166 App. Div. 963 , affirmed.

(Argued December 13, 1917;

decided January 8, 1918.)

Appeal from a judgment of the Appellate Division of the Supreme Court in the fourth judicial department, entered March 12, 1915, unanimously affirming a judgment in favor of plaintiff entered upon a decision of the court on trial at an Equity Term in an action to foreclose a mechanic’s lien. The plaintiff was a material-man and the first lienor to file his notice of lien. The defendants, appellants, were owners of the real property improved. The defendant Steel Storage and Elevator Construction Company was the general contractor. The defendant Empire Limestone Company was a material-man that filed a lien, having sold and delivered materials to the contractor. Other defendants also filed liens. The answers alleged full payment of the contractor

p. 619

previous to the filing of its hen and that of other lienors, including the respondent Empire Limestone Company, and that there was nothing due any of the lienors. The judgment of the trial court sustained all of the hens in full and held that moneys were earned and became due on the contract between the owners and the general contractor to which the hens attached.

Franklin D. L. Stowe for appellants.

James McCormick Mitchell for plaintiff, respondent.

Frank Gibbons, Clinton K. De Groat and Vernon Cole for defendants, respondents.

Judgment affirmed, with, costs to each respondent who appeared and filed a brief; no opinion.

Concur: Chase, Collin, Hogan, Cardozo, Crane and Andrews, JJ.; Hiscock, Ch. J., dissents from affirmance of so much of judgment as sustains lien of Empire Limestone Company for use of barges.