130 N.Y. 571, Van Clief v. Van Vechten

Citation:130 N.Y. 571
Party Name:JOHN H. VAN CLIEF et al., Respondents, v. HANNAH R. VAN VECHTEN, Impleaded, etc., Appellant.
Case Date:February 09, 1892
Court:New York Court of Appeals
 
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Page 571

130 N.Y. 571

JOHN H. VAN CLIEF et al., Respondents,

v.

HANNAH R. VAN VECHTEN, Impleaded, etc., Appellant.

New York Court of Appeal

February 9, 1892

Argued December 7, 1891.

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COUNSEL

Ezekiel Fixman for appellant. The only judgment or relief which the plaintiff could have as against the owner, is for the sum which was due pursuant to the terms of the contract from the owner to the contractor at the time of the filing of the sub-contractor's lien, or that which became due subsequently. (Cook v. O. F. F. Union, 49 Hun, 23; Cheney v. Troy Hospital, 65 N.Y. 282; Crane v. Genin, 60 id. 127; Rodbourn v. S. L. G. & W. Co., 67 id. 213; Lombard v. S. B. & N.Y. R. R. Co., 55 id. 491; Sullivan v. Brewster, 1 E. D. Smith, 681; Spaulding v. King, Id. 718; Ferguson v. Burk, 4 id. 767; Rudd v. Davis, 1 Hill, 277; Smith v. Coe, 2 Hilt. 365; 29 N.Y. 669; Baily v. Johnston, 1 Daly, 61-67; Cox v. Broderick, 4 E. D. Smith, 721; Haswell v. Goodchild, 12 Wend. 373.) Nothing was due and unpaid under the terms of the contract from the owner to the contractor at the time the plaintiffs filed their notice of claim or lien, as was held by the General Term, and from this it follows, and it should be held that the said notice of claim or lien so filed by the plaintiffs was ineffectual to charge the defendant Van Vechten's property and this action cannot be maintained against her. (Wyckoff v. Meyers, 44 N.Y. 145; McMahon v. N.Y. & E. R. R. Co., 20 id. 463; B. N. Bank v. Mayor, 63 id. 339; Smith v. Brady, 17 id. 176; U.S. v. Robeson, 9 Pet. 319; Thomas v. Floery, 26 N.Y. 26; Smith v. Wright, 4 Hun, 652; 39 N.Y. 380; Handley v. Walker, 8 Lawy. 207; Larkin v. McMullen, 120 Minn. 206.) Plaintiffs did not by filing their notice of claim acquire a valid or effectual lien against the defendant Van Vechten's property, and this action

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should be dismissed. (Morgan v. Stevens, 6 Abb. [N. C.] 356; O'Donnell v. Rosenberg, 14 Abb. [ N. S.] 59; Crane v. Genin, 60 N.Y. 130; Larkin v. McMullen, 120 id. 206; Cunningham v. Jones, 4 Abb. Pr. 433; 20 N.Y. 486; Smith v. Brady, 17 id. 173; Glacius v. Black, 50 id. 145; Finn v. O'Hara, 2 E. D. Smith, 560; Prouser v. Florence, 4 Abb. [ N. C.] 136; Crane v. Genin, 60 N.Y. 127; Murphy v. Bruckman, 66 id. 297; Wheeler v. Schofield, 67 id. 311; Taylor v. Mayor, etc., 83 id. 625; Crawford v. Becker, 13 Hun, 375.) Defendant Van Vechten has a good and valid counter-claim as against the plaintiffs, and all the defendants who filed liens, and that sum should be allowed to the defendant Van Vechten and deducted from the contract price, or from any sum that was due when plaintiffs filed their lien, in the event that it is held that the contract was not forfeited by Smalle's default. (Murphy v. Bruckman, 66 N.Y. 297; Heckman v. Pinkney, 81 id. 211; Taylor v. Mayor, etc., 83 id. 625; Crawford v. Becker, 13 Hun, 375; Smith v. Ferris, 1 Daly, 18; Rodbourn v. S. L. G. & W. Co., 67 N.Y. 215; Larkin v. McMullen, 120 id. 206.) The owner Van Vechten may for the purpose of reducing or defeating the claim in this action, avail herself of all matters allowable by way of rocoupment or counter-claim arising out of the contract between the owner and the contractor, and which would be available against the contractor in an action by him, the right of the parties being determined by the facts existing at the time of the creation of the lien. (Cheney v. T. H. Assn., 60 N.Y. 281; Morgan v. Stevens, 6 Abb. [ N. C.] 363; O'Donnell v. Rosenberg, 14 Abb. Pr. [N. S.] 59; Miller v. Moore, 1 E. D. Smith, 739; Hoyt v. Hill Miner, 7 Hilt. 525; Develin v. Mack, 2 Daly, 100; Gourdier v. Thorp, 1 E. D. Smith, 698; Heckman v. Pinckney, 81 N.Y. 211; Larkin v. McMullen, 120 id. 206; Crawford v. Becker, 13 Hun, 375.) The finding of the referee that $2, 900 was earned, is not supported by the proofs, and the exception to it was well taken. (Bedlow v. N.Y. F. D. D. Co., 112 N.Y. 263; Sheldon v. Sheldon, 51 id. 354; Kennedy v. Porter, 109 id. 526; Wright v. Roberts,

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43 Hun, 113.)The County Court had no jurisdiction of the subject-matter of this action. (Code Civ. Pro. §§ 340, 499; 1 Rumsey's Pr. 53; Avery v. Willis, 24 Hun, 348; Gilbert v. York, 111 N.Y. 544; Lenyard v. Lynch, 62 How. Pr. 56; Laws of 1870, chap. 467, § 1; Laws of 1880, chap. 480; Robinson v. O. S. N. Co., 111 N.Y. 316; Davidsburgh v. K. L. Ins. Co., 80 id. 526; Wheelock v. Lee, 74 id. 495.) Plaintiffs have not proven a cause of action upon which the defendant Van Vechten is in any way personally liable, or for which her property could be made subject to the notice of claim or lien of the plaintiffs, or of any of the other defendants. (Laws of 1885, chap. 348.)

David Thornton for respondents. Plaintiffs were entitled to the sum of $800, not only unpaid, but actually earned under the contract. (Wright v. Roberts, 43 Hun, 413; Heckman v. Pinkney, 81 N.Y. 211; Graf v. Cunningham, 109 id. 369; Sheffield v. Leffler, 3 N.Y. Supp. 150.) Even if it were as claimed by defendant, that the owner's liability was only to the extent of the amount payable by the terms of the contract to Smalle at the time of the filing of the lien, the plaintiffs' recovery was proper. (Graf v. Cunningham, 109 N.Y. 369.) The question of jurisdiction of the County Court of the subject-matter of this action, raised by defendant, was properly determined by the county judge, the referee and General Term herein. (Sweet v. Flanagan, 61 How. Pr. 327.) Having once acquired jurisdiction of the action by the service of the summons, it is within the power of the court to amend the complaint or other proceedings. (McIntyre v. Currier, 17 Hun, 64; Dwyer v. Rathbone, 17 N.Y. S. R. 443; Campbell v. Mandeville, 110 N.Y. 628.) The question of residence of the owner, Van Vechten, was not raised until after the trial was completed before the second referee. It was then too late. It was not...

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