Hollister v. Mott

• Decision Date: 12 February 1892
• Citation: 29 N.E. 1103,132 N.Y. 18
• Parties: HOLLISTER et al. v. MOTT.
• Court: New York Court of Appeals Court of Appeals

132 N.Y. 18

29 N.E. 1103

HOLLISTER et al.

v.MOTT.

Court of Appeals of New York,

Second Division.

Feb. 12, 1892.

Appeal from supreme court, general term, fifth department.

Action by Granger A. Hollister and another against Philander Mott to foreclose a mechanic's lien. The general term affirmed a judgment for plaintiffs entered on the report of a referee. Defendant appeals. Reversed.

M. M. Waters, for appellant.

J. E. Durand, for respondents.

BROWN, J.

This action was brought to foreclose a mechanic's lien. April 22, 1887, the appellant entered into a contract with John H. Huls, by which Huls agreed to erect for him three dwelling-houses on land on the north side of Clifford street, in the city of Rochester, according to plans and specifications set forth in the contract. Among other things, Huls was ‘to put in a sewer,’ and was to connect the houses ‘with the sewer said Mott had built on the south side of Clifford street last season, of the same size of sewer as used by said Mott last season, so as to drain all the cellars of said houses, with all the laterals for said sewers for each house; also to put in the water-works for all of said houses.’ The houses were to be completed by August, 1887, and, when fully inclosed, appellant was to pay Huls $450 on each house; and, when all the houses were built and completed according to the terms and conditions of the contract, he was to pay ‘money enough to be equivalent to nine hundred and ninety dollars for each house.’ The respondents' lien was filed October 10, 1887, and prior to that date they had furnished to said Huls lumber used in the construction of said houses of the value of more than $800, and prior to that date payments had been made to Huls by the appellant, on account of the houses, amounting to $2,020. It appeared that after the work was commenced it was discovered that the sewer referred to in the contract as the one with which the sewer to be built by Huls was to connect, was not deep enough to drain the cellars of the houses; and thereupon, with Huls' consent, the appellant contracted with one Tripp to deepen said sewer, and carry it over the course specified in the contract with Huls, so as to drain the appellant's houses, and also for the right to connect the water for said houses with water-pipes to be laid by Tripp to premises adjacent to the appellant's property, and the putting in of the drain from the houses to said sewer and the water connection were by consent delayed until Tripp should complete the work undertaken by him. After Tripp's work was completed, Mott notified Huls to go on and complete his contract; and thereupon a disagreement arose between the parties in reference to...