New v. Carroll — 80 N.Y. Sup. Ct. 564

Majority

p. 564

John New and Another, Respondents, v. Howard Carroll, Appellant, Impleaded, etc.

Headnote

Work done on a lot by a sab-contractor — evidence authorizing a judgment against■ the owner of the lot.

In an action brought to foreclose a mechanic’s lien and recover the value of work done in digging a foundation for the defendant’s house, upon his land, the proof was clear that the defendant knew of the progress of the work under a contract made between the plaintiff and the contractor employed by the defendant, and under the direction of the defendant’s architect.

JB.eld, that proof that such work had been completed according to the requirements of the architect authorized a judgment in favor of the party doing it. against the owner of the house and lot.

p. 565

Appeal by the defendant, Howard Carroll, from a judgment of foreclosure and sale in favor of the plaintiffs, made at the Westchester Special Term and entered in the office of the clerk of the county of Westchester on the 17th day of July, 1893, upon the report of a referee.

The action was brought to foreclose a mechanic’s lien on property in the city of Yonkers.

J. M. Dittenhoefer, for the appellant.

John J. Orenncm, for the respondents.

The defendant Carroll is the owner of a lot of land 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. Seifert was Carroll’s architect, and within a day or two Koch employed the plaintiffs 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, but the same was finished by other parties on the foundation made by plaintiffs. Koch agreed to give $520 for the original work, and although the plaintiffs 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 work. 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 that it was completed according

p. 566

to the requirements of the architect. The facts found authorize the judgment. (Otis v. Dodd, 90 N. Y. 336 ; Miller v. Mead, 127 id. 544; Pell v. Baur, 133 id. 377.)

The judgment should be affirmed, with costs.

Pratt and Dykman, JJ., concurred.

Judgment affirmed, with costs.

Cases cited

Otis v. Dodd 90 N. Y. 336 N.Y. 1882-11-14 p. 566