Schnaufer v. Ahr

In December, 1899, one Nikisch, who had begun work on certain premises, northwest corner of Brook avenue and 169th street, the Bronx, failed and abandoned said premises. Plaintiff had furnished certain sand, stone, and team hire on the premises, for which he claimed Nikisch owed him $1,432.09. Plaintiff alleges that they" were furnished with the knowledge and acquiescence of defendant, which is denied by defendant. Certain contractors filed mechanic’s liens, and plaintiff states that he was preparing to do the same, when defendant, it is alleged, requested him not to do so, and agreed that, if the lien were withheld, he (defendant) would pay the Nikisch claim, on the further condition that plaintiff would furnish the sand necessaiy to complete the buildings. To this, plaintiff says, he assented; whereas, defendant says that it was a gratuity- on his part, as he only wanted to offer plaintiff an opportunity "to make up for his loss on the Nikisch contract. The amount of the Nikisch claim was $1,432.09, and the price of sand $3.50 a load. The amount for the sand furnished defendant to complete was $700, and the price of sand $2.50 per load; the same as the Nikisch contract. Defendant was the owner of the lot on the northwest corner of Brook avenue and 169th

The issues were submitted to the jury in a charge to which no exception was taken, and the jury gave a verdict for the full amount claimed by plaintiff. ' At the close of plaintiff’s case', and again at the close of the whole case, the defendant moved to dismiss the complaint on the following grounds: (1) That the propiise, if made, was to pay the debt of another, and is void under the statute of frauds, as not being in writing. (2) No promise has been proven to pay any specific sum in consideration of no lien being filed. (3) That, if any promise was made, it was to pay the amount of Nikisch’s indebtedness, and there is no proof as to what the amount of the indebtedness was. The motion was denied, and exception duly taken. The court, in substance, charged the jury that as any promise, if made, was not in writing, there was no obligation upon defendant, unless he made a direct promise on a consideration moving to himself; that in this case such consideration was claimed to be plaintiff’s right to file a lien on defendant’s premises; and consequently, if defendant had promised to pay plaintiff for the materials delivered to Nikisch if plaintiff did not file a lien, the jury- must be satisfied that the plaintiff had a right to file a lien upon

We think that there was some proof upon which the jury could find that in December, 1899, Nikisch owed to plaintiff $1,432.09, and that plaintiff could have filed a lien against the property, and that, in consideration of plaintiff’s not filing such lien, defendant promised to assume the payment of the Nikisch debt upon certain conditions which have been fulfilled. As defendant was the owner of the property, or a part thereof, he derived a direct benefit to himself from the abstention of plaintiff from filing a lien, which consideration took the promise out of the statute of frauds. “Where the primary debt subsists and was antecedently contracted, the promise to pay it is original when it is founded on a new consideration moving to the promisor and beneficial to him, and such that the promisor thereby comes under an independent duty of payment, irrespective of the liability of the principal debtor.” White v. Rintoul, 108 N. Y. 222 , 15 N. E. 318 . There can be but little doubt that the defendant knew all about the work going on at the premises. The jury must have so thought. Defendant still owned the lot upon which all the buildings faced, and hence upon which the foundations made up of plaintiff’s materials lay for the most part. He confesses that title had never parted from him, and he was $100 ahead by the Nikisch deposit. Nikisch failed December 15, 1899. Plaintiff made his last delivery about a week or so before. Under the mechanic’s lien law he had 90 days to file his notice of lien, running the limit into March, 1900. Defendant admits that there was a meeting in March. Plaintiff and his superintendent say it was soon after the failure that meeting was had. At any rate, there seems little doubt that a meeting was had in the ninety day period. The jury had the issue plainly set before it, and decided for plaintiff on that. Defendant, as we have seen, owned the land upon which the foundations principally lay. It never passed from his hands. He afterward acquired the rear lot, subject to the lien of a Nikisch lien by Clifford ,L. Miller. He even had his deed to the 169th street plot made more certain by a new deed from the original grantors.^ J.S is alleged that defendant knew of the contract of plaintiff, and furnished the anchor irons. The jury evidently believed the allegation to have been proved, even in the face of defendant’s denial. The iol

“A contractor, a subcontractor, laborer or materialman, who performs labor or furnishes material for the improvement of real property with the consent of or at the request of the owner thereof, or his agent, contractor, or subcontractor, shall have a lien for the principal and interest of the value or agreed price of such labor or materials upon the real property improved or to be improved and upon such improvement, from the time of filing a notice of such lien as prescribed in this article.”

The consent clause in the lien law proceeds upon an equitable principle that one who knowingly received the benefit of the labor or property of another in the form of improvement upon his land ought to have his property subjected to a lien for the value of such improvement. Butler v. Flynn, 51 App. Div. 225 , 64 N. Y. Supp. 877 . Where the vendor under an executory contract for the sale of real estate consents that the vendee take immediate possession of and erect a permanent structure on the premises, lienors who have rendered work, labor, and services to such structure may, after vendee’s default, .enforce their liens against the premises to the extent of the market value of the labor and material done and furnished. Beck v. University, 32 Misc. Rep. 567 , 67 N. Y. Supp. 305 . “A person who has contracted to sell real estate remains the ‘owner,’ within the meaning of the statute, until the title passes.” Packard v. Sugarman, 31 Misc. Rep. 623 , 66 N. Y. Supp. 30 . It follows, then, that defendant, being the owner under an executory contract to sell, which was never fulfilled, came under the law as liable to those doing work or furnishing materials with his knowledge or consent. The jury having decided the fact of consent, the right to lien as against defendant existed in the plaintiff, and to forbear filing such was a valuable consideration. The witnesses having given contradictory testimony, and the court having distinctly charged as to the question of preponderance and credibility, without an exception, the verdict should not be disturbed, as there is sufficient evidence to sustain the verdict.

There is, however, another objection presented by defendant on this appeal, which we think well taken. The court, as we have seen, granted an order amending the verdict, as recorded, by adding interest in the sum of $150.56. It has been held that, even though the jury is discharged, the court has the power-to correct the verdict, so as to make it conform to the real determination of the jury, if the motion is made at the term of the court at which the verdict was rendered. Hodgkins v. Mead, 119 N. Y. 166 , 23 N. E. 559 . That doctrine, however, does not apply here; for it is not evident that the real determination of the jury was to add $150.56 interest to the amount allowed to the plaintiff. Even assuming that they intended to allow some interest on the claim, the date from which interest would have been allowed, and consequently the amount of such interest, is not clearly shown. As asked by defendant’s counsel, was the interest to date from the beginning of the action, or from the date when Nilcisch’s indebtedness accrued, or from the date of defendant’s promise to pay the Nikisch debt upon the completion and sale of the building, or from the date of such sale itself?