Hyperlawhypertext legal database Vandergriff v. Bertron 82 N.Y.S. 153

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Vandergriff v. Bertron

82 N.Y.S. 153 Court N.Y. App. Div. Decision date 1903-05-05 English

Delivered by WILLIAMS, J.

Contents

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p. 153
VANDERGRIFF v. BERTRON et al.
(Supreme Court, Appellate Division, Fourth Department.
May 5, 1903.)

Headnote

1. Mechanics’ Liens—Executed Contracts—Validity—Designation of Firm Name.
In an action to enforce a mechanic’s lien for work done in pursuance of executed contracts for railroad construction, the fact that plaintiff, • who was alone interested, designated himself in the contracts as “V. & Co.,” which was made a criminal offense by Pen. Code, § 363, did not deprive him of his right to enforce his lien.
2. Same—Assumption of Liabilities.
Where plaintiff sued to enforce a mechanic’s lien for railroad construction work done under certain written contracts with a syndicate composed- of defendants, and for a balance due for additional work performed at the syndicate’s request after the written contracts had been performed, and it did not appear that the railroad companies who had assumed the syndicate’s liabilities under the contracts had also assumed the liability for the extra work, defendants were not thereby relieved from personal liability for such extra work.
8. Same—Conditions Precedent—Performance—Allegations.
Under Code Civ. Proc. § 533, providing that in pleading a condition precedent it is not necessary to state facts constituting performance, but
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the party may state generally that he has duly performed all the conditions on his part, a complaint on a contract for railroad construction, alleging'that plaintiff has duly fulfilled and performed all the conditions of the contract on his part to be performed, was sufficient without a specific allegation that the work had been done and accepted by defendants’ engineer, as required by the contract.
Appeal from Special Term, Chautauqua County.
Action by James N. Vandergriff against Samuel Bertron and others. From a judgment overruling demurrers to the complaint, defendants appeal.
Affirmed.
Argued before ADAMS, P. J„ and McLENNAN, SPRING, WILLIAMS, and HISCOCIC, JJ.
Frank W. Stevens, for appellants.
Frederick W. Park, for respondent.

The judgment should be affirmed, with costs, with leave to the defendants to plead over upon payment of the costs of the demurrers and of this appeal.

The action is to enforce a mechanic’s lien upon the property of the railroad companies, defendants. The lien is for work, labor, and materials furnished in the construction of a railroad. Personal judgment is demanded against the other defendants, who are called a “syndicate,” and who originally made the contracts with the plaintiff for the construction of the railroad. The lien is for two claims— one for $49,597.24, balance due under three written contracts; and the other for $57,224.04, balance due for additional work dpne at the request of the syndicate after the written contracts had-been fully performed. The demurrer is on the ground that the complaint does not- state facts sufficient to constitute a cause of action. In making the contracts, the plaintiff, who was alone interested, used the designation “Vandergriff & Co.,” and the defendants claim that this was a crime under section 363 of the Penal Code, which rendered the contracts illegal and void, and that the plaintiff can recover nothing for the labor and materials furnished thereunder, and cannot enforce the lien therefor. This contention cannot be sustained. The contracts are not executory, but executed ones. The labor and materials have been furnished, and the defendants have had the full benefit thereof. In such a case the law is too well settled to be questioned that .under the old statute or the Penal Code the plaintiff is entitled to recover and to enforce his lien. Gay v. Seibold, 97 N. Y. 472 , 49 Am. Rep. 533 ; Taylor v. Bell & Bogert Soap Co., 18 App. Div. 175 , 45 N. Y. Supp. 939 ; McLean v. Wohltjen, 25 Misc. Rep. 742 , 55 N. Y. Supp. 632 ; Sinnott v. Ger. Am. Bank, 164 N. Y. 386 , 58 N. E. 286 .

It is further claimed by the syndicate that they are not liable to any personal judgment, because- the contracts have been assigned by them to the railroad companies, the companies have assumed all the liabilities of the syndicate under the contracts, and the syndicate has been released therefrom. While this may be true as to that portion of the claim based upon the contracts, it does not appear to be true as

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to the part for labor and materials furnished at the request of the syndicate after the contracts had been fully performed.

It is also claimed that the complaint is defective in failing to allege that the work was done to the satisfaction of the engineer of the defendants, and was accepted by him; such acceptance being a condition precedent to a recovery under the terms of the contract. Section 533 of the Code of Civil Procedure, however, provides that in pleading a condition precedent in a contract it is not necessary to state facts constituting performance, but the party may state generally that he, or the person whom he represents, duly performed all the conditions on his part, and, if that allegation is controverted, he must, on the trial, establish performance. The pleading alleges all that is essential under this provision. The allegation is that the plaintiff “has duly fulfilled and performed all the conditions of the •said contracts on his part to be performed,” etc.

The trial court properly disposed of the case.

Interlocutory judgment affirmed, with costs, with leave to the defendants to plead over upon payment of the costs of the demurrer and of this appeal. All concur.

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