Dyer v. Osborne

The plaintiffs brought this action to foreclose a mechanic’s lien which they had filed against the property of the defendant (appellant) Dora M. Osborne. She had entered into an agreement with one James F. Diskin, under which he was to build the cellar of those premises for the sum of $4,900. The plaintiff- contracted with Diskin to furnish certain granite blocks for the sum of $269.65. After the blocks had been delivered and used in the construction of the cellar, Diskin discontinued the work,, claiming that the appellant forbade him to proceed further. She, on the other hand, asserts that he abandoned it However this may be, the appellant admits that the work was completed by her, under the building contract with Diskin, pursuant to a clause therein contained to the effect that upon his default she could elect, upon the service of a three-days notice, to finish the work, and to deduct its cost from the unpaid balance of the contract. By making this election, she waived any right she might have had to insist that Diskin had forfeited all claim to the final payment, and became liable to him for the excess, if any, of such unpaid balance over the cost of completion. Ogden v. Alexander, 140 N. Y. 356 , 35 N. E. 638 ; Wheeler v. Scofield, 67 N. Y. 311 . Upon that excess the subcontractor’s lien, of course, could rest. Van Clief v. Van Vechten, 130 N. Y. 571 , 29 N. E. 1017 ; Schmohl v. O’Brien, 25 Misc. Rep 699 , 55 N. Y. Supp. 629 . Upon the trial it was a sharply litigated question whether in fact any excess existed. According to Diskin’s testimony, the expenditure - of $100 would have finished the cellar, and there would then remain due to him $1,617.50. According to the appellant’s testimony, she paid out several hundred dollars more than that sum to complete his work. This conflict the justice solved in the plaintiffs’ favor, at least to the extent of the lien under foreclosure; and we would not be

Judgment affirmed, with costs to respondents. All concur.