Silleck v. Robinson

ecution of the note plaintiff was advised by the said defendants that their partnership in the building enterprise in question had been dissolved ; that the defendant Resht had no further interest therein, and would not be responsible for. any lumber to be thereafter delivered. It was also asserted that the defendant Robinson alone would continue the work of construction. Plaintiff thereupon refused to deliver^ to Robinson any lumber on Robinson’s personal responsibility, excepting a certain small quantity, to the extent of $138.43, which was required for immediate use, pending arrangements to be made by Robinson to procure lumber elsewhere. The last item of lumber for which plaintiff was to hold Robinson alone answerable was delivered on March 13, 1907, and the last delivery of lumber before plaintiff was informed that Resht would not pay for any future deliveries was on the 31st day of January, 1907. On May 10, 1907, the plaintiff filed his notice of lien for $1,913.69, the aggregate of $1,774.37, the balance concededly owing by Robinson and Resht, and of $138.43, the amount due under the so-called personal obligation of Robinson. It thus appears that the notice of lien was filed within 90 days after the last delivery of materials to Robinson individually, but more than 90 days after the last delivery to Robinson and Resht jointly.

Defendants now urge that so far as the item of $1,774.37 is concerned the lien is ineffectual, in that it was not filed within the time prescribed by statute. The complaint declares upon a quantum meruit, and not for breach of the written contract. When plaintiff was advised by the defendants of the dissolution of their copartnership, and that the defendant Resht would not be responsible for any future deliveries, he had the right to decline to make any further deliveries and to sue upon a quantum meruit. Windmuller v. Pope, 107 N. Y. 674 , 4 N. E. 436 ; Clark v. Mayor, 4 N. Y. 338 -343, 53 Am. Dec. 379 . The circumstance that plaintiff voluntarily waived a personal claim against Resht for the small amount of lumber delivered after February 9th did not affect his right to treat the last item of lumber furnished as a delivery by virtue of his contract with Robinson and Resht, and to deem the contract terminated upon such delivery. The situation is not analogous to that found in Steuerwald v. Gill, 85 App. Div. 605 , 83 N. Y. Supp. 396 , where, after the completion of all the work required under his contract with the defendant, the plaintiff performed additional work at the request of defendant’s wife. The filing of the lien in that case more than 90 days after the completion of the work under the original contract, but within 90 days after the performance of the extra work ordered by the wife, was held to be insufficient to maintain the lien for the balance due under the original contract; the court finding that there were two distinct and separate contracts. In the case at bar, however, the timber supplied after February was part of that agreed to be furnished under the contract with Robinson and Resht. Robinson ostensibly continued to be interested in the buildings as owner, and the materials delivered were for the improvement of the real property upon which the notice of lien was filed. Lien Law (Laws 1897, p. 516, c. 418) § 3. It should also be borne in mind that this is an action in rem, and the question of the

personal liability of Resht may be treated independently of that of plaintiff’s right to assert his lien against the real property. In my opinion, the plaintiff’s consent to make a further delivery after February 9th merely operated as fixing the time when the original contract was to terminate. Nor was it necessary to allege a nonperformance. The action was not brought under the contract as for a breach. The •contract was merely evidentiary of plaintiff’s claim.

The point urged by defendant’s counsel that the notice of lien was invalid, because verified by an agent of the plaintiff who was not necessarily familiar with the facts set out in the notice, is sufficiently answered by the opinion of the court in Union Stove Co. v. Klingman, 20 App. Div. 449 , 46 N. Y. Supp. 721 , affirmed by the Court of Appeals 164 N. Y. 589 , 58 N. E. 1093 .

Judgment for plaintiff as prayed for.