Fiske v. Rogers — 44 N.Y. St. Rep. 825

Majority

p. 825

Joseph W. Fiske, Resp’t, v. John Rogers et al., App’lts, et al., Resp’ts.

(New York Superior Court, General Term,

Filed March 14, 1892.)

Headnote

New Tobe City—Lien on contract—Notice.

A notice of lien under § 1825 of chap. 410, Laws 1882, which states that the amount claimed is due from the contractor with the city under a contract made by him through his agent, when in fact the alleged agent was a subcontractor with whom the contract was made, is_ not in compliance with the statute, and cannot be the foundation of a lien.

Appeal from judgment entered upon report of referee.

Dudley E. Horton, for app’lts; S. D. Sewards, Albert■ H. Atterbury, John Broojcs Leavitt and L. Laflin Kellogg, for resp’ts.

The action was to determine the right of the

parties, under notices of lien, to money due under a contract made with the city.

As to most of the lienors there is a fundamental consideration which will dispose of the appeal as to them. It was found below that the notices of lien filed by them were valid. Section 1825 of chap. 410, Laws of 1882, vol. 2. That section requires that a notice shall state the amount of the claim and from whom due. Whereas the notices now in view stated in legal effect that the amount claimed was due by Rogers, the contractor with the city, under a contract made by Rogers through' his agent, one Fortunato. The referee found that this was not in accordance with the facts, which were that Fortunato was not agent of Rogers and the contracts were made with Fortunato, who was a sub-contractor of Rogers. The notices were therefore not within the statute, and were not the foundations of liens. The judgment that was in favor of the plaintiff and the defendants, Smith, Bran-dell and Curtis & Blaisdell, should be reversed and a new trial ordered, with a single bill of costs to abide the event.

The notice of lien filed by defendants Eitch was objected to on the ground that the contract made with defendant Eogers was in reality made with a firm to which the defendants Eitch had succeeded, but the notice stated that it was made with the defendant. This matter was not open for litigation. The appellants in this answer “ affirmatively allege that they entered into a contract with said defendants Eitch to furnish stone as alleged in this complaint.” The objection to the notice should not be sustained. 1

The facts connected with the claim of the Ritchs cannot be examined because it does not appear that all the evidence is in the case that was settled.

The judgment as to the respondents Eitch should be affirmed, with costs.

No ground has been claimed for reversing the judgment in .favor of Russo. It is therefore affirmed, with costs.

Sedgwick, Oh. J., Dugro and Gtldersleeve, JJ., concur. ’