Banham v. Roberts — 28 N.Y.S. 828

Majority

p. 828

BANHAM v. ROBERTS et al.

(Supreme Court, General Term, Second Department.

May 14, 1894.)

Headnote

Mechanics’ Liens—Payment to Contractor in Advance.

Where the owner of a building pays the contract price to the contractor before it is due, such paj^ment does not defeat the right to mechanics’ liens, though it was made before notices of liens were filed.

Appeal from judgment on report of referee.

Action by Charles W. Banham against Mary A. Roberts and others to foreclose a mechanic’s lien. From a judgment in favor of plaintiff and of defendants Odell, defendant Mary A. Roberts appeals. Affirmed.

Argued before BROWN, P. J., and DYKMAN and PRATT, JJ.

W. H. H. Ely, for appellant.

Purdy & Squire, for respondent Banham.

Yale & Davison, for respondents Odell.

This is an action for the foreclosure of a mechanic’s lien. It was tried before a referee to hear and determine, and he decided in favor of both the claimants; one of the defendants being a lienor, or • holder of a lien. The owner has appealed from the order confirming the referee’s report, and also from the judgment entered thereon.' The plaintiff filed two notices of lien upon the property, one of which he assigned to the defendants the Odells, and upon the other commenced this action. The Odells and Turner, the original contractor, were brought in as defendants after the commencement of the action. It seems the owner had paid a sum equal to the contract price for the building before the notices of liens were" filed, but it also appears that the

p. 829

payments under the contract were anticipated; and, by the provisions of the act under which this action is prosecuted, payments made in advance of the terms of the contract cannot operate to the prejudice of the lienors. Laws 1885, c. 343, § 2; Cheney v. Association, 65 N. Y. 282 ; Post v. Campbell, 83 N. Y. 282 . If the owner shall be obliged to pay beyond the contract price in this case, such obligation is the result of her indiscretion in making payments in advance of the terms of the contract. It is claimed by the appellant that some of the work is not the subject of a lien, under the provisions of the mechanic’s lien law, but we think it all falls within the term “appurtenances.”

Much complaint is made respecting the well, but the evidence discloses no abuse or overcharge. Eock was struck at the depth of 7 feet, and at 18 feet water was reached. After that the well was sunk deeper, to make a reservoir; and, as the powerful explosives employed tore out a space unnecessarily large, it was decided to buüd it up with brick from bottom to top. That was done, and rubble masonry filled in back of the brick. There was no overcharge, and the claim under both liens was meritorious. The record discloses no error, and the judgment and order should be affirmed, with costs. All concur.