Ogden v. Alexander — 43 N.Y. St. Rep. 829

Majority

p. 829

Charles E. Ogden, Resp’t, v. Elizabeth Alexander et al., App’lts.

(Supreme Court, General Term, Fourth Department,

Filed February 13, 1892.)

Headnote

Mechanics’ men—Pebsons entitled to file libn.

A contractor who was engaged in building a house for defendant’s predecessor in title made a contract with plaintiff and his partner to put in a furnace and do the plumbing. Before the work was completed plaintiff’s partner retired, assigning all the assets, including the claim under the contract, to plaintiff, who completed the work. Held, that plaintiff was authorized to file a lien against the property notwithstanding what had transpired between him and bis partner ; that it might be assumed that he became the agent or servant of the firm for that purpose.

Appeal from a judgment entered in Delaware county on the report of Hon. W. B. Edwards, referee, in an action to foreclose a mechanic’s lien against the property of the appellants. Other parties were made defendants- but they did not appear before the-referee and do not appeal.

August 26, 1888, Charles Alexander was the owner of a lot situated in the village of Walton, and on that day he entered into

p. 830

.a written contract with Horace Hill to erect a dwelling house thereon for the sum of $3,425; Hill commenced performance of .his contract and continued in the performance until August 21, 1889, when he abandoned the same and shortly thereafter made a general assignment for the benefit of his creditors. When the contract was made, Oliver & Ogden, a firm consisting of Robert -Oliver and Charles E. Odgen, the plaintiff, were co-partners doing . business as hardware merchants in the village of Walton; in the month of April, 1889, Hill entered into a contract with the firm for a furnace to be put into the said dwelling and for plumbing .required by the terms of the contract between Alexander and him, and a request was make for a slate roof on the house and •other work which was not completed July 29, 1889. On the 29th of July, 1889, the plaintiff purchased the interest of his co-partner, Oliver, in the partnership property and assets for the sum •of $700, and took possession of all the assets, including the claim .against Hill, agreeing to pay the partnership debts of the firm. Plaintiff continued the work and furnished materials down to the 20th of August, 1889, when he filed the lien for the labor and materials in the office of the county clerk of Delaware county. ‘On the 21st of August, 1889, Hill made an assignment for the ■benefit of his creditors. A subsequent lien was filed by Gr. Y Selden & Co. On September 15, 1889, Alexander died intestate, leaving him surviving his widow and heirs at laws, the appellants.

Samuel H.' Fancher, for app’lts; Alexander Neish, for resp’t. -

(1) Upon the evidence given before the ref-eree he was not able to determine the exact amount which had ■ been paid prior to the filing of the notice of lien by Alexander to Hill or to others for him, but the referee did find, viz.: “ That the amount remaining unpaid at that time was sufficient to pay for the labor and material required to complete the contract, including the sum of $75 toward the mantel, and also to. pay the amount unpaid on the plaintiff’s claim, August 19,1889, and stated in finding seventeenth at the sum of $507.45.” After a careful consideration of the evidence we are of the opinion that the findings', should be sustained.

(2) We are of the opinion that the plaintiff was authorized to file the lien against the property, notwithstanding what had transpired between him and Oliver.

In § 1 of chap. 342 of the Laws of 1885, it is provided: “Any ■person or persons, firm or firms, corporation or association, who shall hereafter perform any labor or service, or furnish any materials which have been used or which' are to be used in erecting, altering or repairing any house * * * may, upon filing the notice of lien prescribed in the fourth section of this act, have a lien for the principal and interest of the price and value of such labor.” According to the literal language of the section from which we have quoted the.plaintiff was at all times after the performance of the work; and. delivery of the materials, entitled to the benefit of the provision of the statute. He has done nothing

p. 831

to forfeit his right to file a lien. But it is contended by the appellants because he became a purchaser of the.interest of Oliver in the assets, that a right to file a lien was not available, and they rely upon the general principle that liens given by a statute in-general are a personal right given to the mechanic, material-man, and laborer for his own protection,” and they call, our attention to Rollin v. Gross, 45 N. Y., 767 , where the general rule was asserted. In the course of the opinion in that case it was intimated that where “the assignment is madefor the benefit of the assignor, and to beheld as his agent, so that the lien may be preserved” is an-exception to general rule; that opinion refers to the opinion of Lord Ellen-borough, 7 East, 5 (McCombie v. Davies) where it was suggested that the general rule did not apply “ to the case of one who, intending to give a security to another to the extent of his lien,, delivers over the actual possession of goods on which he has the lien to that other, with notice of his lien, and appoints that other as his servant to keep possession of the goods for him ; in which case he might preserve the lien.” The same doctrine was approved in Urquhart v. McIver, 4 Johns., 111 ; and in the latter case-judge Kent observes: “ A factor may deliver the possession of goods, on which he has a lien, to a third person, with notice of the-lien, and with a declaration that the transfer is to such person as agent of the factor, and for his benefit. This is a continuance, in effect, of the factor’s possession, etc.”

When the plaintiff acquired the interest of his retiring partner and added that interest to his own interest in the materials furnished and in the contract to supply materials and services to Hill, it may be assumed that he did not intend to relinquish any rights-which he theretofore possessed or to release the firm’s interest in the materials furnished, services rendered, the contract uncompleted and unperformed, and when he assumed to carry out the-contract made by the firm, it is not too much to assume that, he became the “ agent ” or “ servant ” of the firm.

The statute before us in its 25th section is declared to be remedial, and it is provided that it “ is to be construed liberally to secure the beneficial interests and purposes thereof; and a substantial compliance with its several provisions shall be sufficient for the validity of the lien or liens hereinbefore provided for, and to-give jurisdiction to the courts to enforce the same.”

We are of the opinion that the plaintiff was entitled to file notice of his lien and to have the same enforced pursuant to the-provisions of the statute.

(3) Other questions are presented by the learned counsel for the appellants, but we think they are satisfactorily disposed of. for the reasons stated in the opinion of the learned referee.

Judgment affirmed, with costs.

Martin and Merwin, JJ., concur.