140 N.Y. 356, Ogden v. Alexander

Citation:140 N.Y. 356
Party Name:CHARLES E. OGDEN, Respondent, v. ELIZABETH ALEXANDER et al., Appellants.
Case Date:December 12, 1893
Court:New York Court of Appeals

Page 356

140 N.Y. 356

CHARLES E. OGDEN, Respondent,


ELIZABETH ALEXANDER et al., Appellants.

New York Court of Appeal

December 12, 1893

         Argued November 29, 1893.

Page 357


         Samuel H. Fancher for appellant. The plaintiff, as assignee or purchaser of the claim of Oliver & Ogden against Horace Hill, was not authorized by chapter 342, Laws of 1885, to file a lien against this property. ( Rollins v. Cross, 45 N.Y. 766; Menagh v. Whitwell, 52 id. 146; Stanton v. Westover, 101 id. 265; Dimon v. Hazard, 32 id. 65; Saunders v. Reilly, 105 id. 12; Colgrove v. Tallman, 67 id. 95; Millard v. Thorn, 56 id. 402; Savage v. Putnam, 32 id. 501; Morss v. Gleason, 64 id. 204.) The contractor Hill, having failed to perform his contract, and it being conceded by plaintiff that all the contract price had been paid by the owner to the contractor except the last payment of $925, which did not become due until the complete performance of the contract, the plaintiff cannot recover in this action. ( Murphy v. Buckman, 66 N.Y. 297; Gillen v. Hubbard, 2 Hilt. 304; Graff v. Cunningham, 109 N.Y. 369; Kinney v. Apgar, 93 id. 539; Crane v. Grime, 60 id. 127; Wheeler v. Scofield, 67 id. 311; Kelly v. Bloomingdale, 139 id. 343.) The notice of lien is defective and void in that it fails to comply with the requirements of chapter 342 of the Laws of 1885 in this, that it does not set forth the nature and amount of the labor and services performed or to be performed. (Laws of 1886, chap. 382.) The notice of lien is defective and void in that it fails to state correctly the nature and kind of materials furnished. ( Vogel v. Luitweiler, 52 Hun, 184.) The rights of subsequent lien holders are involved in this case as well as those of the owners. (Laws of 1885, chap. 342, § § 6, 17; Laws of 1886, chap. 282, § 22.) The burden of proof rests upon the sub-contractor to show the labor and material furnished and the amount of money due from the same to the contractor at the date of filing the lien. ( Walker v. Payne, 2 E. D. Smith, 662; Has

Page 358

well v. Goodchild, 12 Wend. 373.) Collusion is not to be inferred from the fact that the payments were made in advance. (27 N.Y. S. R. 797.) The notice of lien was not properly verified and untruthfully stated that the contract had been fully performed on the part of the plaintiff; it failed to state the portion of the contract not completed, and was, therefore, void. (50 Hun, 151.)

         Alexander Neish for respondent. The lien was duly filed and served, and thus the plaintiff's testator became subrogated to the rights thereto enjoyed by the contractor. ( Crane v. Genin, 60 N.Y. 131; Gibson v. Lenane, 94 id. 183; Larkin v. McMullin, 120 id. 210; Platt v. Platt, 105 id. 496.) The notice of lien filed and served is ample under section 4 of chapter 342, Laws of 1885. ( Mechan v. Baker, 11 N.Y.S. 781; Hunter v. Walter, 12 id. 60; Harrington v. Dollman, 64 Ind. 252; Kiel v. Carll, 51 Conn. 440; Odd Fellows' Hall v. Masser, 24 Penn. St. 507; Allen v. Mining Co., 73 Mo. 688; Vogel v. Luitweiler, 52 Hun, 184.) The plaintiff's testator was authorized to file and enforce the lien in this case. ( Menagh v. Whitwell, 52 N.Y. 146; Morss v. Gleason, 64 id. 204; Rollins v. Cross, 45 id. 771; Hallahan v. Herbert, 57 id. 409.) The exception taken to the admission in evidence of the sale of goods to Hill after the dissolution of the firm of Oliver & Ogden on the ground that it was not within the pleading, has no merit. (Code Civ. Pro. §§ 539, 540; Craig v. Ward, 1 Abb. Ct. App. Dec. 454; 3 Keyes, 387; Chapman v. Caroline, 3 Bos. 456; Hauck v. Craighead, 4 Hun, 561; Place v. Minster, 65 N.Y. 89, 104; 66 id. 61; 37 Hun, 74; 70 N.Y. 601; Dougherty v. Valloton, 6 J. & S. 455; Pratt v. H. R. R. Co., 21 N.Y. 305; Parsons v. Suydam, 3 E. D. Smith, 276; 70 N.Y. 180, 190; Mack v. Colleran, 136 id. 620.) The effort made during the examination of Cooley and of Heimer to prove by parol the contents of a certain memoranda, viz., a paper with two columns of figures, was properly disposed of by the referee, and there was no error in excluding the evidence.

Page 359

( VanClief v. Van Vechten, 130 N.Y. 571; Foshay v. Robinson, 137 id. 134.)

         FINCH, J.

         The claim of the plaintiff, Ogden, to enforce a mechanic's...

To continue reading