Watts Campbell Co. v. Yuengling — 34 N.Y. St. Rep. 255

Majority

p. 255

The Watts Campbell Co., Resp’t, v. David G. Yuengling, Jr., et al., App’lts.^[1]

(Court of Appeals,

Filed December 2, 1890.)

Headnote

1. Mechanic’s lien.

The labor and materials used in setting a gas compresser and engine with oil trap's and foundation plates for the purpose of- producing artificial cold in the cellar of a brewery are for the purpose of making a permanent accession to the realty, and subject the owner to the liability of having a lien filed under the statute.

.2. Same—Filin® oe.

Where plaintiff had contracted to build such machinery the balance of payment to be made after the machinery “has been erected and has been working satisfactorily for four weeks,” and the owner wrote to the contractor that everything worked right but he would “want the thirty days running before the final settlement,” the ninety days within which the notice of lien must be filed would not begin to run until after the date when the owner was satisfied, although the actual erection of the machinery was completed prior to that time.

• Appeal from judgment of the supreme court, general term, first department, affirming judgment of the special term sustaining a mechanics’ lien, filed under the Laws of 1885.

Samuel Untermyer, for app’lts; Wm. Pierrepont Williams, for resp’t.

The judgment in this case declares that the plaint-' iff is entitled to and has a lien under the statute, for the sum of about §12,000, including certain items of interest and costs upon certain real estate situated in the city of New York, occupied and used as a brewery. " It was adjudged, as a basis for the result, that the plaintiff performed labor and service and furnished materials used in the alteration or repair of a house or building or appurtenances thereto, within the scope and meaning of the statute creating and authorizing the enforcement of liens in such cases. The only questions necessary to consider are, first, whether the case is one that falls within the statute; and, secondly, whether the notice of the lien was filed in time. It was found by the trial -court that the defendant, D. Gr. Yuengling, Jr., was prior to November 1, 1887, the owner of the premises described in the decree. That while such owner, and on December 22,1886, the plaintiff contracted with him to build and erect on the premises a gas com-presser and an engine, for the sum of $9,700. That subsequently and on February 5, 1887, the plaintiff contracted to build for him two oil traps for the further sum of $750 and certain foundation plates for the sum of $650. The foundation plates were in contemplation of the parties during the negotiations which resulted in the contract for the compresser and engine, and had been specified in a proposal submitted by the plaintiff to the owner prior to the making of that agreement. They were procured in order to cap a stone foundation to be specially constructed for the engine and compresser. The oil traps were essential to the efficient working ■of the other machinery furnished by the plaintiff, and their size

p. 256

ordinarily depends upon that of the engine and compresser in connection with which they were intended to be used. They were ordered in connection with the other machinery, and this order was regarded by both parties as an amplification of the original contract of December 22. The engine, compresser, oil traps and foundation plates were constructed and placed on the premises by the plaintiff as. required by the contract. They were ' finally annexed to the freehold, with the intention on the part of the owner that they should form a permanent accession to the brewery for the purpose of producing such artificial cold as was necessary for the proper manufacture of beer. An excavation was made in the cellar of the brewery twenty-one feet long, fifteen feet wide and eight feet deep. Around the edges of this hole twenty iron rods, or anchor bolts, about two inches in diameter and about eight feet long, were placed, each fastened to a cast-iron plate or washer about one and a half feet square resting on the ground below and at the bottom of the foundation

These rods or bolts stood up perpendicularly, and the entire hole was gradually filled up around them with rocks weighing from one hundred to four hundred pounds each, and all cemented into a solid mass. This foundation weighed some two hundred tons. The plates were then laid upon it and the legs of the engine and compresser • upon the plates. The tops of the rods passed through holes in the foundation plates and through the legs of the engine and compresser, which were screwed down tightly by nuts on the rods. We think that the labor performed and materials furnished by the plaintiff were for the purpose of making a permanent accession to the realty. The articles furnished by the plaintiff were in fact and in intention annexed to the freehold so as to become a part of it, and would as between vendor and vendee pass by deed of the premises without special enumeration. Hence the plaintiff performed labor and furnished materials used in altering or repairing a building or appurtenances thereto for which he could have acquired a lien under the statute. Laws of 1885, chap. 342, § 1; Ward v. Kilpatrick, 85 N. Y., 413 ; McRea v. Central National Bank, 66 id., 489 ; Voorhees v. McGinnis, 48 id., 278. Ho lien was acquired, however, unless the plaintiff filed the notice required by the fourth section of the statute in the office of the clerk of the county “ at any time during the performance of the work or the furnishing of the materials or within ninety days after the completion of the contract or the final performance of the work, or the final furnishing of the material for which a lien is claimed, dating from the last item of work performed or from the last item of material furnished.” In this case the notice was filed in the clerk’s office of the city and county of Hew York on the 17th day of September, 1887.

It is found as a fact that the delivery of the machinery at the brewery was completed on the 31st day of May, 1887, and if the ninety days are to. be computed from that date, and not from the date when the machinery was finally and completely annexed to the freehold, then the notice was not filed in time; but there is also a finding “ that the plaintiff was engaged until the 23rd of

p. 257

June, 1887, in placing and erecting the foundation plates, engine and compresser, in joining the various parts of machinery together, and getting it into such condition that it would work satisfactorily.” The actual erection of the machinery was completed on or about the 13th of June, 1887, and on that day the engine was started. The plaintiff’s contract of December 22, 1886, was to build for the defendant a gas compresser and engine of certain dimensions, and of specified style and material, to be delivered and erected on its foundation in the brewery for a specified sum, one-half payable in cash on delivery, and “ the balance after the machinery has been erected, and has been working satisfactorily for four weeks; the last payment to be made by note at four months from date, with interest at six per cent, per annum.” ' The plaintiff also guaranteed the workmanship of the engine and com-presser for one year, provided no disarrangement was caused by carelessness or want of ability on the part of the engineer or person in charge. This contract, as we have seen, contemplated the furnishing of the oil traps,, and foundation plates thereto were subsequently ordered from the plaintiff. Each machine or article of property furnished by the plaintiff was part of a general scheme of improvement in the brewery. The plates were necessary to sustain the engine and compresser, and the oil traps to their successful operation in order to accomplish the purpose the owner had in view, namely, the artificial generation of cold. The contract was to furnish, erect and adjust them all to each other in such a manner as to accomplish the desired end. This contract was hot completed until all the machinery had been erected and “working satisfactorily.” This result was not reached by the plaintiff until the 23rd of June, 1887. On that day Mr. Yuengling, the owner, addressed the following letter to the plaintiffs:

“ Gtentlemeh—Your Mr. Robert Smith wants to be relieved from taking further charge of the new engine and compresser you put up in my brewery; he says everything works all right. I have no objection to let him go, but will want the thirty days running before the final settlement.

“Yours truly, D. Gr. Yhshglihg, Jr.”

The owner of the property as well as the plaintiff considered and treated the latter date as the time of the completion of the work contemplated by the contract and the time from which the day of final settlement was to be computed. In the language of the statute it was the day of “ the completion of the contract or the final performance of the work, or the final furnishing of the material for which a lien is claimed, dating from the last item of work performed or from the last item of material furnished ;” and the plaintiff had ninety days thereafter within which to file the required notice. The other questions discussed by the defendants are, we think, clearly untenable. The disposition made of the ease by the courts below was right and the judgment should be affirmed, with costs.

All concur.