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New v. Carroll

26 N.Y.S. 320 Court N.Y. Gen. Term Decision date 1893-12-01 English

Delivered by BARNARD, P. J.

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Majority

p. 320
(73 Hun, 564.)
NEW et al. v. CARROLL et al.
(Supreme Court, General Term, Second Department.
December 1, 1893.)

Headnote

Mechanic’s Lien—Employment by Contractor.
Defendant employed a carpenter to build a house. The carpenter employed plaintiff to dig the foundation for a certain sum. Afterwards, defendant’s architect ordered the excavation for the foundation to be increased, and the whole was done under the direction of the architect. Before the foundation was finished, the carpenter fell sick, but the house was finished by other persons on the foundation made by plaintiff. Meld, that plaintiff was entitled to a lien for the work done by him.
Appeal from special term, Westchester county.
Action by John Mew and Frank Mew, composing the firm of Mew & Sons, against Howard Carroll, as owner, and W. J. Koch, as contractor, to foreclose a mechanic’s lien. There was judgment in favor of the plaintiffs, and defendant Carroll appeals.
Affirmed.
Argued before BARNARD, P. J., and PRATT, J.
Dittenhoefer & Gerber, (I. M. Dittenhoefer, of counsel,) for appellant.
John J. Crennan, for respondents.

The defendant Carroll is the owner of a lot of land in Yonkers. He sent to defendant Koch, a carpenter and builder, to come to his office, and upon his arrival told him that he wished him (Koch) to build a house on this lot for him. Koch accepted the employment. A few days after this, in August, 1891, Koch was directed to start the house at once. Mr. Sufelt was Carroll’s architect, and within a day or two employed the plaintiff to dig the foundation. At this time only the foundation plan was made out. New agreed with Koch to excavate the foundation for $520. Subsequently, the extent of the excavation was increased, by order of the architect, and this increase cost $240. The entire excavation was done under the direction of the defendant Carroll’s architect. Before the excavation was finished, Koch was taken sick, and was not able to build the house, but the same was finished on the foundation made by plaintiff, by other parties. Koch agreed to give $520 for the original work, and, although the defendant said it was too much, no one stopped the plaintiffs, or told

p. 321
them that the agreed price was not to stand. On this proof the referee properly found that the plaintiffs were employed by Koch; that Koch, as to this work, was a contractor with Carroll; that it was worth $520, the agreed price; and that the extra work was worth $240. Nothing has been paid to Koch or to the plaintiffs on account of the same. The referee also justly and properly found that there was due from the owner to Koch, the contractor, the sum of $760. The proof is clear that the owner knew of the progress of the work under the contract with Koch, and under the directions of his own architect, and that it was completed according to the requirements of the architect The facts found authorize the judgment. Otis v. Dodd, 90 N. Y. 336 ; Miller v. Mead, 127 N. Y. 544 , 28 N. E. 387 ; Pell v. Baur, 133 N. Y. 377 , 31 N. E. 224 . The judgment should be affirmed, with costs.

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