Thomas v. Sahagian — 32 N.Y. St. Rep. 1057

Majority

p. 1057

Edwin L. Thomas, Resp’t, v. Aslan Sahagian, Impl’d, App’lt.

(Supreme Court, General Term, Second Department

Filed July 18, 1890.)

Headnote

1. Mechanics lien — Building contract — Performance.

The second instalment of a building contract was to be paid “when floors should be laid, partition set and ready for the mason.” There were some departures from the contract as to material, but the architect’s refusal was placed on other grounds, some of the items of which were proven to be outside of the requirements for the second payment and some were remedied, but a certificate was again refused. Held, that the refusal was unreasonable; that the owner was in the wrong in refusing to pay, and that the lienors were entitled to pay out of the second instalment.

.3. Same.

The contractors failed to complete and made an assignment. The assignee was made a party and answered that the owner broke the contract and made claim for a breach. The judgment directed payment to the assignee of the balance of the second instalment over the amount of the liens. Held{ no error.

Appeal from judgment in favor of plaintiff and other lienors.

Action to foreclose a mechanic’s lien.

Joseph F. Daly, for app’lt; John II. Ferguson, for resp’t.

The defendant, Sahagian, made a contract with Stewart & Edwards for the erection of a house on his lot in Yonkers. The price to be paid the contractors was $6,176, payable in instalments on the certificate of the architect. The contractors enclosed the building and thus became entitled to the first payment of $1,500. The second instalment was payable “ when floors should be laid, partition set and ready for the mason, $1,500.” The question litigated on the trial was whether the contractors had earned this second payment, for they failed to carry out the contract and made an assignment. The architect refused the certificate, but the trial judge has found that the refusal was unreasonable and unjustifiable, and that the second payment was earned. The appeal is taken from the judgment based upon the finding that the second instalment was due and payable. 'The words of the contract. are very general. The floors were to be laid and partition set and ready for the mason. The contract calls for pine for window frames and light shafts to inside rooms. The house would not be ready for the mason until they were put in,"and they were put in from cotton wood and not pine. The proof was contradictory as to the assent of the architect to the change. The contractor and architect were at variance, but as the refusal of the certificate by the architect was put on other grounds and did not refer to the use of cotton wood instead of pine, it is most reasonable to believe that the change was assented to.

p. 1058

The deficiencies claimed by the architect were the subject of contradictory proof; some of the items were proven to be outside of the requirements for the second payment, and some were done after the architect pointed them out, when a certificate was again asked for and again refused The owner was, therefore, in the wrong when he refused to pay the instalment, and the lienors are-entitled to payment out of the sum actually due by the terms of the contract when the owner refused to carry out its provision. Graf v. Cunningham, 109 N. Y., 369 ; 15 N. Y. State Rep., 524.

It was, therefore, of no moment as between the parties whether or not the building cost more to complete than the original contract price, and the refusal to find on that question was not error. The liens filed are not sufficient to absorb the whole $1,500. The assignee of the contractors was made a party defendant. lie answered that the owner broke the contract, and seeks to recover for a breach of contract. The judgment directs the sale of the property for liens which are unquestioned, and the difference between these liens and the second instalment is to be paid to the-general assignee of the contractors. That "was right. The owner and contractors were necessary parties defendant; either could question the facts on which the lien was based. As to different lienors the act provides that all shall be provided for by the judgment in their order of priority and paid out of the proceeds of. sale. The, judgment must establish the amount of all the liens- and direct the sale of the land for their payment. The contractor made a claim for which he had filed no lien. By the fifteenth, section of chap. 342, of the Laws of 1885, any claimant who fails, to establish a valid lien may recover a judgment for whatever is due him against any party or parties. This appears to be broad enough to uphold the judgment. A multiplicity of suits is not favored, and with all the parties before the court, and every fact proven from which the rights of all parties could be determined, it seems not to be right to cut the contractors’ claim off because-the liens do not consume all which is due under the contract to the contractors.

The judgment should be affirmed, with costs.,

Pratt, J., concurs.