Ringle v. Wallis Iron Works — 93 N.Y. Sup. Ct. 153

Majority

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Jacob Ringle and Another, Respondents, v. The Wallis Iron Works, Appellant, Impleaded with Another.

Headnote

Findings of fact — not disturbed on appeal — personal judgment on the foreclosure of a mechanics lien — Lams of 1885, chap. 842, § 15.

Findings of fact in a plaintiffs favor should not be disturbed where they are not against the weight of evidence or where it cannot be said that the evidence so clearly preponderates in the defendant’s favor as to justify with reasonable certainty the conclusion that the trial court has erred.

■Semble, that in a proceeding taken under the Laws of 1885, chapter 842, relative to mechanics’ liens, where the claimant establishes a valid lien he is entitled not only to a judgment against the property, but also against the person primarily liable.

■Semble, that the provision of section 15 of said act, that when in an action brought under it a claimant fails to establish a valid lien he may still recover judgment in the action for such sum as may appear to be due him and which ho might recover in an action upon contract, was not intended to limit this remedy of a personal judgment against the party liable, to those persons only who had failed to establish a valid lien upon the property.

Appeal by the defendant, The Wallis Iron Works, from a judgment of the Supreme Oourt in favor of the plaintiff, entered in the

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office of the clerk of the county of New York on the 15th day of October, 1894, upon the decision of the court rendered after a trial at the New York Special Term.

The judgment contained the following provision :

“ It is further ordered, adjudged and decreed that so much of this judgment as is against the said premises and as declares that the said plaintiffs now have a lien and claim against said premises is in form only, and has been directed and is now entered for the purpose of enabling the said jilaintiffs to recover upon a certain bond given by the Wallis Iron Works as principal and the American Surety Company of New York as surety, and which was filed in the office of the clerk of the city and county of New York on the 28th day of May, 1892, for the purpose of discharging the said mechanic’s lien or claim as against the said real estate as provided by a certain order of the Supreme Court of the State of New York bearing date the 28th day of May, 1892.”

William G. Wilson, for the appellant.

E. L. CJollier and Thomas 0. Ermever, for the respondents.

In this action, brought for the foreclosure of a mechanic’s lien, and resulting in a judgment for the plaintiffs, the grounds, among others, urged for reversal are, that there is no evidence to support the finding that the plaintiffs performed their contract, or that the defendant ever accepted what the plaintiffs did as a full and complete performance thereof, either of which it was essential to prove to entitle the plaintiffs to the judgment. The plaintiffs were subcontractors of the Wallis Iron Works under a contract made by the latter with the J. L. Mott Iron Works to do certain work on a boiler house.

As to whether the sub-contractors completed their work there was some evidence tending to show that they completed it in the latter part of November, 1891, one of the plaintiffs testifying: “ I saw this work after it was completed; saw that it was completed.” Upon the question of whether it was accepted or not by the Wallis-Iron Works, we have the letters of the latter written to the J. L. Mott Iron Works, in one of which they state that their superintend

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ent visited the works and “ the work was all finished and in first-class condition.” And in answer to the complaint of the J. L. Mott Iron Works that it was not properly or completely finished, the second letter was written by the Wallis Iron Works, in which they say : “ Upon investigation we find that the trouble is not due to-any neglect on our part, but it is caused by putting the steam pipes through the roof by other parties after the completion of our work.” These questions of fact, therefore, having been resolved in plaintiffs’1 favor, such findings- should not be disturbed where, as here, they cannot be said to be against the weight of evidence, or that the evidence was so clearly preponderating in defendants’ favor as to justify with reasonable certainty the conclusion that the court below erred.

The only additional question pressed upon our attention is the claim that the judgment is erroneous in that it assumes to award both judgment for the enforcement of a lien and a personal judgment against the Wallis IronWorks. It is doubtful if the question is before us for review, because no exception was taken to the form of the judgment either at the time of entry or subsequently. But upon the merits we do not think the contention is good. The statute reads : “ Whenever, in any action brought under the provisions of this act, any claimant shall fail for any reason to establish a valid lien, he may. nevertheless, recover therein judgment against the party or parties to the action for such sum or sums as may appear to be due to him and which he might recover in an action upon a contract against the said party or parties.” (Laws of 1885. chap. 342, § 15.) The construction sought to be given to this section by the appellant is that the only case in which a claimant can recover such a judgment as he might recover in an action upon a contract is where he fails to establish a valid lieu; and that where there is a judgment upholding the lien as valid, no personal judgment can be granted. Such a construction, we think, is too narrow. When a claimant establishes a valid lien he is entitled to a judgment in form commensurate with the relief to which he thus shows himself entitled, which not only raises a personal claim against the one primarily liable, but also against the property upon which the work has been done. To some extent the judgment is thus assimilated in form to a judgment upon the foreclosure of a mortgage, wherein the

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right to proceed against the land is accompanied by a judgment against the principal debtor for any deficiency. There is nothing in the section quoted which prevents one establishing a lien from obtaining his full relief, which includes his right to enforce it, not only out of the property against which the lien is filed, but for any deficiency against the person who for the amount thereof is indebted to the claimant. Without discussing this question further, however, we think it has been disposed of in the action between these same parties, decided at the March term of this court. (N. Y. Law Jour., Mar. 22, 1895; S. C., 85 Hun, 279 .)

We think the judgment was right, and,that it should be affirmed, with costs.

Yan Brunt, J?. J., and Barker, J., concurred.'

Judgment affirmed, with costs.