Graf v. Cunningham

• Decision Date: 24 April 1888
• Parties: GRAF et al. v. CUNNINGHAM et al.
• Court: New York Court of Appeals Court of Appeals

109 N.Y. 369

16 N.E. 551

GRAF et al.

v.CUNNINGHAM et al.

Court of Appeals of New York.

April 24, 1888.

This was an action by respondents, Andreas Graf and _____ Keupp, to enforce mechanics' liens against the appellant, Mary Cunningham; Samuel Self, respondent, another subcontractor and lienor, being made a party defendant. The plaintiffs, Graf and Keupp, and defendant Self, were employed as subcontractors by John Wilson, who contracted to build a house for Mary Cunningham upon payment of certain sums as the work progressed. A payment not being made, work was abandoned. There was a judgment for the respondents, and plaintiff appeals.

J. Stewart Ross, for appellant.

Henry Fuehrer, for respondents Graf and Keupp.

F. P. Bellamy, for respondent Self.

PECKHAM, J.

The defendant agreed with one Wilson to pay him $3,500 for building a house, the payments to be made in installments as certain stages in the process of building were reached. She paid Wilson $1,500 during the progress of the building, and the court finds that, upon the date named in its finding, $400 more were due him under the contract. She refused to pay it, and claimed the work was not advanced far enough, and was not done in accordance with the contract. The court found against her on these points, and there is evidence to sustain the finding. The contractor, upon defendant's refusal to pay, neglected to go on with the work, when she served a notice upon him stating that, as he had announced he had abandoned the work, and as he had stopped work, she thereby required him to proceed with the erection thereof within two days; and, if he failed so to do, she should consider that he had abandoned the work, and she would proceed herself to finish the erection of the building, and hold him for the damages. Wilson did not proceed, and she went on, and finished the building at an expense of $1,430, which, with the $1,500 already paid, left a balance of $570 of the original contract price. The plaintiffs and some of the defendants are subcontractors, and filed liens, and have recovered judgments for the payment to them of their liens out of the above $570, to the extent to which it will go. Four hundred dollars were due Wilson when he demanded it for work which he had already done, and the owner's refusal to pay was wrongful. This is the finding of the court. There can be no question but that such sum should be paid the lienors in this proceeding, as a payment pro tanto for the work done by them on the building, and which the defendant has the benefit of, because that sum, at least, was due Wilson at the time he demanded it, and which the owner has never paid. More difficulty exists in relation to the $170. But we think, upon the whole, it should also be allowed the lienors, and such allowance simply makes the owner liable for the contract price of the building which she agreed to pay Wilson. We think the defendant, in effect, went on under her notice above mentioned, and completed the building at the expense...