Richardson & Boynton Co. v. Brooklyn Mill & Lumber Co. — 20 N.Y. St. Rep. 888

Majority

p. 888

Richardson & Boynton Co., Resp’t, v. Brooklyn Mill and Lumber Co. and James Reid, App’lts.

(Supreme Court, General Term, Second Department,

Filed December 10, 1888.)

Headnote

1. Mechanic’s lien—When owner of property personally liable.

An owner of property makes himself personally liable to a sub-contractor furnishing work and materials on the property by participating in the order given by the contractor, coupled with assurances of payments.

2. Same—Complaint in foreclosure of—Sufficiency of.

A complaint in an action for the foreclosure of a mechanic’s lien which charges that “at the special instance and request” of the contractor, and “with the knowledge, approval and restriction” of the owner, the subcontractor furnished goods to the owner’s house, is sufficient to support a judgment holding the owner personally liable.

This action is brought under the lien law of 1885 (Laws 1885, chapter 342), to foreclose a lien on property of the defendant Reid for the agreed price of work and labor done and performed, and materials furnished by the plaintiff to the defendant, The Brooklyn Mill and Lumber Company, at its special instance and request in and as part of a house which that corporation was erecting on the property of defendant Reid under a contract between him (Reid) and it (said defendant corporation). The cause of action, as alleged in the complaint, is based on a contract between plaintiff and defendant, The Brooklyn Mill and' Lumber Company, for the doing of the work and the furnishing of the materials in respect whereof the notice of lien was filed; and defendant Reid was made a party simply to enforce the lien against his interest in the property.

Issue was joined by the separate answer of the defend*ants. The action was tried as an equity cause before a judge without a jury, who found as matters of law (1) that defendant, The Brooklyn Mill and Lumber Co., was personally indebted. (2) That defendant Reid was personally liable. (3) That plaintiff, by the performance and furnishing of materials and the filing and docketing of the lien, as set forth in the complaint, acquired and had a good and valid mechanic’s lien on the property of defendant Reid. (4) That plaintiff have judgment of foreclosure and sale, etc., and a deficiency judgment against each of the defendants, and ordered judgment to be entered in accordance with the findings. Judgment of foreclosure and sale, etc., and directing a personal judgment against each of the defendants for any deficiency was accordingly entered. From this judgment defendant Reid appeals. The appeal comes-before the general term on the judgment-roll, consisting of the pleadings, the findings, the judgment, the exceptions to findings, and the notice of appeal.

p. 889

James Albright, for app’lt and owner; Charles Henry Phelps, for pi’if and resp’t; Louis Steckler, for def’t and resp’t.

This is an action for the foreclosure of a mechanice’s lien upon real property in Far Roekaway, belonging to the defendant James Reid.

This appeal is brought upon the judgment roll upon questions of law only, the testimony not being contained in the case. The cause was tried before a judge without a jury and his findings which are contained in the record, furnish the facts upon which the appeal must be decided. The judge has found that between the first of May 1857, and the 20th of August, negotiations and correspondence had taken place between the plaintiffs and the Brooklyn Lumber Company relative tojj a furnace and range to be furnished by the plaintiffs in and about the fitting of the house which the lumber company was then erecting under contract with Reid upon his property, and that it had been agreed between those parties that the size of such furnace should be No. 36. That about the 20th day of August 1867, the defendant Reid called at the store of the plaintiffs in New York city, and told them that there was money in his hands belonging to the lumber company, that he desired a larger and more expensive kind of a furnace put in his house, to wit, a No. 40 furnace, and in substance promised that if the plaintiff would put the same in, he, Reid would pay the bill therefor. That the plaintiff thereupon notified the Brooklyn Mutual & Lumber Co., of such interview with Reid, and of the order given by him for a larger and more expensive furnace, and the lumber company gave its consent that the plaintiff should fill that order so given by Reid.. That in consequence of such order, the plaintiffs did furnish a larger, more expensive furnace and range selected by Reid, and set the same up in his house at Far Roekaway, and supplied and put in registers, soap-stones, hot air pipes, dampers, arrangements,.water-backs, and performed everything necessary to fulfill its contract with reference to the furnace and range in a proper and workmanlike manner, and such work and materials were reasonably worth the sum of $297.25, which amount was known and agreed npon as the price therefor by both the defendants.

That such sum had never been paid and that proper notice of lien was filed and served upon the defendant Reid, and then found all the formal facts necessary to constitute the lien upon the property. His conclusions of law as found by the judge were that the defendant was personally liable to the plaintiff for their claim for the furnace, that he

p. 890

personally undertook and agreed to pay for the same, and that the plaintiffs have a good and valid lien on all the property for such amount, and ordered judgment in their favor. From that judgment the defendant Reid has taken an appeal, and his contention seems to be that the complaint in the action lays no foundation sufficient to sustain the judgment. '

It is stated in the complaint that at the special instance and request of the defendant, the Lumber Company, by and with the knowledge, approval and ratification of the defendant Reid, the plaintiffs performed the work and furnished the materials for the erection of the furnace and its appendages, and that such work and materials were, furnished by plaintiff at the agreed price between the plaintiffs and the defendants of $297.25.

' The complaint seems to be sufficient to sustain the judgment, and the facts found by the trial judge show an original undertaking on the part of Reid to pay for the substituted furnace and its appendages. His conduct and conversation with the plaintiffs was sufficient to impose upon him a personal liability for the payment of the furnace ordered and substituted for the one originally ordered by the Lumber Company, and such obligation seems to be amply sufficient to sustain the lien of the plaintiffs.

Our conclusion is, that the judgment should be affirmed, with costs.

Barnard, P. J., and Pratt, J., concur.