Decker v. O'Brien — 72 N.Y. St. Rep. 22

Majority

p. 22

Paul G. Decker, Resp’t, v. John E. O’Brien, App’lt.

(Supreme Court, Appellate Division, First Department,

Filed Jan’y 24, 1896.)

Headnote

Mechanic's lien—Judgment.

Where a judgment, in a proceeding to foreclose a mechanic’s lien, directs that the plaintiff recover of the defendant the whole amount adjudged to be due, but also provides for the sale of the premises, and that, if there js any deficiency remaining on the sale, the amount thereof be specified in the report of the referee, and that the plaintiff recover of the defendant the amount of the deficiency so remaining, and have execution therefor, there is nothing in this judgment from which it can be inferred that execution is to be issued against the property of the defendant for the whole amount of the lien.

Appeal from a judgment in favor of plaintiff.

M. Daly, for app’lt; Jeroloman & Arrowsmith, for resp’t.

—This is an action to foreclose a mechanic’s lien filed against certain premises in the city of New York, of which the defendant, John E. O’Brien, was the owner. The plaint-

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was employed, under a written contract, to do certain plumbing work in the said premises, and to furnish the materials therfore, the whole stipulated price being $3,740. The lien also includes an item of $28 for extra work. It appears by the report of the referee before whom the case was tried that $2,000 was paid by the defendant, O’Brien, on account of the contract price, leaving the balance claimed of $1,768. The answer of the defendant sets forth, substantially, that the contract was not performed in accordance with the requirements of certain specifications, which are to be taken as forming part of the contract, and that there was a failure of the plaintiff to perform his- contract in a good substantial, and workmanlike manner; and a counterclaim is set up for damage alleged to have resulted from the non-performance of the contract by the plaintiff, in the sum of $1,882. The referee allowed on the counterclaim the sum o'f $125,50, thus reducing the plaintiff’s claim to $1,642.50, for which judgment was directed.

The appeal brings up for review, in the first place, a ruling of the referee with respect to the admission in evidence of what purported to be specifications of the contract referred to. These specifications were necessary in order to show what was required to beyond by the plaintiff. They were admitted in evidence and it was shown that they were the specifications originally made with certain changes, all of which appear to have been by the defendant. When they offered in evidence, the referee stated that, if any objection to their correctness were to be made, he would then hear it, and if none were made the paper would be marked in evidence. It does not appear that any objection was made, but an exception seems to be recorded to the ruling of the referee. There being no ground of objection stated, and nothing appearing upon the record from which the court, could infer that the referee was in error in accepting the paper in evidence, it is unnecessary to make further reference to this topic.

It is claimed by the appellant that the proof does not establish that the plaintiff substantially performed the contract, and we are asked to examine a folios or more of testimony, and a number of exhibits, to extract evidence of seemingly inconsiderable omissions and defects in the work which was done by the plaintiff. There is no certificate in the case that the record contains all the evidence that was submitted to the referee. We have, however, looked into it sufficiently to ascertain that, on all of the matters of alleged defects specified in the fourth point of the appellant’s brief, there was conflicting evidence, and the determination of the referee respecting what was established by that evidence we are not called upon now to interfere with. So far as the details of the work were concerned, we see no reason to differ with the referee in the conclusion that there was a substantial compliance with the contract.

It appears by the record that upon the trial a witness (Arrowsmith) was allowed to give testimony of a conversation had between himself and one Marshall respecting the absence of a certificate of the architect that the work was properly done,

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such a certificate being mentioned in the contract as a condition precedent to the payment of the full amount. The objection and exception to this evidence seem to have been taken after the testimony was all given, and from all that appears, it may have been upon the ground that the referee overruled the objection. But what was said was competent evidence of a refusal of the architects to give the certificate required by the contract, and thereby excuse the plaintiff for its'nonproduction. We do not find anything in the" other exceptions, to the rulings of the referee, nor to his findings, of sufficient gravity to disturb the conclusion at which he has arrived. On the evidence, what the referee has allowed on the counterclaim seems to be ample.

Concerning the form of the judgment, to which defendant states an objection, it is true that it directs that the plaintiff recover of the defendant the whole amount adjudged to be due; but it also provides for the sale of the premises, and that, if there be any deficiency remaining on the sale, the amount thereof be specified in the report of the referee, and that the plaintiff recover of the defendant the amount of the deficiency so remaining, and have ex ecu-cation therefor. There is nothing in this judgment from which it could be inferred that execution was to be issued against the property of the defendant for the whole amount of the lien. The true interpretion is that the premises are first to be resorted to, and that plaintiff have execution against the property for deficiency in case the full amount is not realized from a sale of the premises. On the whole case, we are* of opinion that the judgment should be affirmed, with costs.

All concur,.