Mull v. Jones — 45 N.Y. St. Rep. 643

Majority

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De Witt Mull et al., Resp’ts, v. Henry M. Jones et al., App’lts.

(New York Common Pleas, General Term,

Filed April 4, 1892.)

Headnote

Mechanic’s lien—Substantial compliance with statute.

Where a sub-contractor has performed his contract according to its main scope and intention, omitting nothing, and is waiting merely to do odds and ends of patching which' he cannot do until after all the other mechanics have left the building, a notice of mechanic’s lien filed by him, in which he claimed that his contract had been performed, substantially complies with the statute and is valid.

Appeal from judgment of foreclosure and sale under a mechanic’s lien, entered, on report of a referee.

J. Homer Hildreth, for resp’ts; ' W. Stebbins Smith (Jacob Fromme, of counsel), for app’lts.

This is an appeal by defendants, Jones and Jackson, from a judgment of this court, entered upon the report of a referee, in an action to foreclose a mechanic’s lien, filed December 4, 1888, by Mull & Fromer, sub-contractors, for plastering work, etc., under Bowers & Yreeland, contractors with Homy M. Jones, owner, for altering a certain building in the city of Hew York.

The plaintiffs were to receive $587'for their work when it was all completed. At the time of the filing of their lien all was completed with the exception of pointing up the plastering after the other mechanicshad left the building, an item which involved an expense of $27.55. The performance of this under the plaintiffs’ contract was prevented by the abandonment of the work by the contractors, Bowers & Yreeland, after the lien was filed; hut it was afterwards done by plaintiffs at the request of the owner, who finished the building himself at a cost of $847.92, which was less than the final payment coming to Bowers & Yreeland, and left a balance in the owner’s hands of $287.06, to which extent the referee held the plaintiffs’ lien established against the property.

The owner and the contractors’ assignee object to this decision on the grounds (1) that all of plaintiffs’ work was not performed, and, therefore, nothing was due them when the lien was filed; and (2) that no lien was acquired, because the notice untruthfully stated that all the work had been performed.

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It is not necessary that the work for which the lien is filed should be completed at the time of filing the notice. A lien will be acquired if the notice is filed at any time during the performance of the work ; but the notice must state whether all the work for which the claim is made has been actually performed, or if not, how much of it. Act of 1885, chap. 342, §§ 1, 4. Failure to comply with this requirement is fatal to the lien, Close v. Clark, 16 Daly, 91 ; 30 St. Rep., 671 , but a substantial compliance with it is sufficient for the validity of the lien and to give jurisdiction to the courts to enforce it. Act, § 25.

I think the notice of lien in this case substantially complied with the statute, in stating that all the work had been done, because the claimants had then substantially performed their contract. All. that remained were odds and ends of pointing up after the other mechanics. This involved but a trifling outlay, and the plaintiffs were not in default with respect to it, but were ready and willing to do it if the contractor had reached that stage of his work. It was but a small and unimportant part of the contract and it was not omitted through their fault. Flaherty v. Miner, 123 N. Y., 382 ; 33 St. Rep., 681 , and cases cited; Woodward v. Fuller, 80 N. Y., 312 .

The cases bearing upon this point cited by appellants do not ■conflict with this view. In Close v. Clark (above) the lien was held to be invalid for stating that all the work and materials had been actually performed and furnished when there were several omissions which the claimants failed to supply although notified to do so; and the untruthful statement might have misled subsequent lienors and the public. In Foster v. Schneider, 50 Hun, 151 ; 19 St. Rep., 449 , the lien was held invalid for containing a ■similar statement when in fact only a third of the work had been done and yet the lien was filed for the whole contract price, the court saying that the statement was materially untruthful and made to avoid complying with the law, and was deceptive of itself and might have been injurious to the other persons having ■claims under the statute against the property.

It would seem, therefore, that it is only a material misrepresentation in the notice which affects its validity and that a statement in it which, although not exactly the fact, .is not calculated to mislead other claimants or the public is not material; and that the lien is valid if the statements contained in it are substantially true, and it would seem reasonable to hold that where a lienor has performed his contract according to its main scope and intention, omitting nothing, and is waiting merely to do odds and ends of patching which he cannot do until after all the other mechanics have left the building, he may claim that his contract has been substantially performed. As the term i’S generally understood his contract work is done, although his payment does not mature until he has completed the odds and ends. There is absolutely no misrepresentation in such a claim.

It is urged, however, that the effect of the filing of the lien before the time of payment matured with a statement that the whole amount was due and owing was to destroy the credit of

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the contractor, and induce the filing of other liens, force him to abandon his contract and throw the burden of completing the work upon the owner. There is no finding to that effect, but at .all events the argument is of no force. The filing of the lien does not excuse the contractor from going on and performing his ■contract which the law presumes his ability to do; and so far as the owner is concerned he has suffered inconvenience from the default of his own contractor and not of the plaintiffs, and is besides not damaged, for he has been allowed the full cost of completing the work, the plaintiffs’ lien attaching to the balance only of the money unpaid upon his contract.

As to the contention that, as the plaintiffs were not entitled to payment until the pointing up had been done, upon the principle that there was no performance of the contract while anything remained undone which it was the duty of the contractors to do, Watts-C. Co. v. Yuengling, 51 Hun, 302 ; 21 St. Rep., 186 , the referee could not find there was anything due them at the time of the filing of the lien, this is in effect disposed of by the conclusion already reached that the facts warranted the claim that at the time of the filing of the lien the work had been substantially performed. What remained to be done was prevented by the contractor’s subsequent default; and the argument of appellants, if carried to its legitimate conclusion, would deprive plaintiffs of any compensation for the work actually performed; for the contractor, by his abandonment, deprived them of the opportunity to complete. This defense is, of course, not available to the contractor nor his assignee, for they could not urge as an objection to plaintiffs’ demand upon the contract that they had failed in any particular as to which the assignor himself had prevented performance.

The claimants were entitled to an allowance of costs against the owner defending the action. He could have paid the amount he conceded due into court and thus relieved himself of costs. Act, § 19.

The judgment should be affirmed, with costs.

Pryor and Bischpff, JJ., concur.