Majority
p. 200Peter Campbell et al., Resp’ts, v. Amalie Coon, App’lt. (New York Common Pleas, General Term, Filed May 7, 1894.)
Headnote
Mechanic’s men—Contbacts out of state.The right to a lien, pursuant to chap. 343 of 1885, does not' extend to contracts made and to be performed out of the state.
Appeal from a judgment for plaintiffs rendered on the report of a referee. Action by sub-contractors against contractor and owner for the foreclosure of an alleged lien under the provisions of the Mechanics’ Lien Law (ch. 342, L. 1885).
Herbert H. Gibbs, (Robert L. Harrison, of counsel), for app’lt; James J. Allen, for resp’t.
That plaintiffs did not by means of the filing of their notice claiming it, acquire a lien upon the. premises of the owner, the defendant-appellant, is clear and beyond successful dispute. The right to a lien pursuant to the provisions of the-Mechanic’s Lien Law (ch. 342, L. 1885) does not extend to contracts made to be performed out of this state. Birmingham Iron Foundry v. Glen Cove Starch Mfg. Co., 78 N. Y. 31 . The. action was to foreclose an alleged lien under the provisions of the Mechanic’s Lien Law (ch. 342, L. 1885) of this state. It was intended thereby more particularly to secure the application of a
p. 201
balance due from the owner to the contractor towards the payment of an indebtedness from the latter to the sub-contractors who had supplied certain materials which were used in the construction of the building. The contractor was a corporation organized under the laws of New Jersey, hence, a resident of that state. Plimpton v. Bigelow, 93 N. Y. 592 . Plaintiffs, also, were residents of New Jersey and their contract to supply the material was made there. By the terms of the contract the materials were to be delivered in Hoboken, New Jersey, and in the city of New York. No place of payment by the contractor was, however, specified. In legal intendment, therefore, the state wherein the contract was made, and the contracting parties severally resided, was the place contemplated by the parties for the purposes of such payment. Perry v. Erie Transfer Co., 28 Abb. N. C. 430 ; 46 St. Rep. 185 . The lien provided for by the Mechanic’s Lien Law (ch. 342, L. 1885 (is a statutory security, in effect the same as a mortgage, and was known to the common law. Davis v. Alvord, 94 U. S. 545 ; Freeman v. Cram, 3 N. Y. 305 ; Benton v. Wickwire. 54 id. 226 ; Mushitt v. Silverman, 50 id. 360 . It is a right, not a remedy, Atkins v. Little, 17 Minn. 342 ; and the statute which confers it has no extra territorial force. Birmingham Iron Foundry v. Glen Cove Starch Mfg. Co. supra. We appeal to the lex fori for the remedy by which to enforce an alleged right, but the lex loci contractus, or lex solutionis must determine whether, or not, the right exists. Contracts are presumed to have been made with reference to the lex loci contractus and the lex solutionis ; never with reference to the laws élsewhere. Accordingly, it cannot be successfully contended that by means of a contract made and to be performed in New Jersey plaintiffs became entitled to a right or security in New York, the quality of which is wholly derived from the statute law of the last mentioned state and which is only there enforceable. The judgment should be reversed as to the defendant-appellant, and the complaint as to her dismissed, with the costs of this action and of this appeal.
Bookstaver, P. J. and Pryor, J., concur.
Cases cited
- Plimpton v. Bigelow 93 N. Y. 592 p. 201
- Davis v. Alvord 94 U. S. 545 p. 201
- Freeman & Wait v. Cram 3 N. Y. 305 p. 201