Wright v. Reusens — 39 N.Y. St. Rep. 804

Majority

p. 804

James R. Wright, Resp’t, v. Guillaume Reusens, Impl’d, App’lt.

(Supreme Court, General Term, Second Department,

Filed July 2, 1891.)

Headnote

Mechanic’s lien—Wrongful refusal of certificate.

In an action to foreclose a mechanic’s lien, it was found on sufficient evidence that after work entitling plaintiS to the two first instalments had been done, the architect wrongfully refused to give him a certificate; that defendant wrongfully refused to pay the amount due, and afterwards wrongfully discharged plaintiff and refused to permit him to complete performance of the contract. Held, that these findings disposed of the question involved, and that plaintiff was entitled to recover.

Appeal from judgment in favor of plaintiS, entered by direction of Barnard, P. J., on the report of a referee.

Michael H. Cardoza, for app’lt; Silas J. Owens, for resp’t.

—This is an action to foreclose a mechanic’s lien by the plaintiS, who was the contractor, and other lienors are made parties to the action.

The cause was tried before a referee and he reported in favor of the plaintiS, and the appeal is by the owner from the judgment entered upon his report.

After the plaintiS had performed considerable work under his contract with the appellant and had been paid $1,500, he was discharged, and the decision of this case hinges upon the legality of such discharge, and that again depends upon the question whether any money was due to the plaintiS under his contract at that time.

The contract provided that the plaintiS should receive $5,244.50 for the work he undertook to do under it, to be paid in instalments as follows:

$1,000 when certified by the architect

$1,500 “ “ “ “

$1,744.50

$1,000 “ “ , “ “ “ on entire completion of contract ; $300 if fully completed on December 1,1888, as per section 8, provided that in each of said cases the architect shall certify in

p. 805

writing that all the work upon the performance of which the payment is to become due as aforesaid has been done to his satisfaction.

It is to be collected from this portion of the contract, therefore, that the payments were to be made in instalments as the work progressed and became due upon the performance of the work, and the architect was to certify in writing when the work was done upon the performance of which the payment was to become due.

The referee has found upon sufficient proof that prior to the 1st day of December, 1888, the plaintiff had performed work in execution of the contract which entitled him to the first two payments under the contract, amounting to $2,300, and that the architect unreasonably and wrongfully refused to give the plaintiff a certificate for such amount and that the appellant wrongfully and unreasonably refused during the month of December, 1888, to pay the plaintiff $1,000, and that the appellant wrongfully and without just case discharged the plaintiff on the 7th day of January, 1889, and refused to permit him to complete the performance of his contracL

We think those findings are justified and dispose of the only question involved.

The record discloses no error and the judgment appealed, from should be affirmed, with costs.

Pratt, J., concurs; Barnard, P. J., not sitting.