p. 425John New et al., Resp’ts, v. Howard Carroll et al., App’lts.(Supreme Court, General Term, Second Department,Headnote
Mechanic’s lien—Completion by owner.Where the defendant employed a carpenter to build a house, who engaged plaintiff to dig the foundation for a certain sum, an 1 afterwards plaintiff’s architect ordered the excavation to be enlarged, which was done under the direction of the architect, but, before the foundation was finished, the carpenter fell sick, and the house was completed by other persons upon the foundation made by plaintiff, the latter is entitled to a lien, for the work done by him.
Appeal from a judgment in favor of the plaintiffs.
The defendant Carroll is the owner of a lot of laud in Yonkers. He sent to defendant Koch, a carpenter and builder, to come to his office, and upon his arrival, told him that he wished him, Koch, to build a house on this lot for him. Koch accepted the employment. A few days after this in August, 1891, Koch was directed to start the house at once. Mr. Sufelt was Carroll’s architect, and within a day or two employed the plaintiff to dig the foundation. At this time only the foundation plan was made out New agreed with Koch to excavate the foundation for $520. Subsequently the extent of the excavation was increased by order of the architect, and this increase cost $240. The entire excavation was done under the direction of the defendant Carroll’s architect Before the excavation was finished Koch was taken sick, and was not able to build the house,
p. 426but the same was finished on the foundation made by plaintiff, by other parties. Koch agreed to give $520 for the original work, and although the plaintiff said it was too much, no one stopped the plaintiffs, or told them that the agreed price was not to stand. On this proof the referee properly found that the plaintiffs were employed by Koch; that Koch as to this work was a contractor with Carroll; that it was worth $520, the agreed price, and that the extra work was worth $240. Nothing has been paid to Koch or to the plaintiffs on account of the same. The referee also justly and properly found that there was due from the owner to Koch, the contractor, the sum of $760. The proof .is clear that the owner knew of the progress of the work under the contract with Koch, and under the directions of his own architect, and was completed according to the requirements of the architect. The facts found authorize the judgment.
Otis v.
Bodd, 90 N. Y., 336 ;
Miller v. Mead, 127 id., 544 ; 40 St. Rep., 177 ;
Pell v.
Baur, 133 N. Y., 377 ; 45 St. Rep., 241 .
The judgment should be affirmed, with costs.