56 Misc. 168, J.J. Newman Lumber Co. v. Wemple

Citation:56 Misc. 168, 107 N.Y.S. 318
Party Name:THE J. J. NEWMAN LUMBER COMPANY, Plaintiff v. J. CADY WEMPLE et al., Defendants.

Page 168

56 Misc. 168

107 N.Y.S. 318



J. CADY WEMPLE et al., Defendants.

Supreme Court, Monroe Special Term.

October, 1907

Page 169

Action to foreclose a mechanic's lien.


Lewis & McKay, for plaintiff.

John Desmond, Deputy Attorney-General, for State of New York.


This is an action brought by the plaintiff to foreclose a lien filed against moneys due, or to become due, under a contract made between the board of managers of the State Industrial School and J. Cady Wemple and George W. Eycleshymer, composing a copartnership, doing business under the firm name and style of the Schenectady Engineering and Construction Company. The contract was dated August 30, 1904, and was for the construction of sixteen cottages and sixteen barns on the State Industrial School property at Rush, N. Y., and the contractors were to receive for such work $96,454.82. The contract was to be completed on or before the 31st day of May, 1905.

The plaintiff's lien is one of about eighty-four liens filed against the same moneys, sixteen of said liens being for materials furnished, and the balance for labor. Two of the liens for materials and seven for labor were not proven upon the trial, but all of the lienors were made parties defendant.

The answer of each of the defendant lienors sets forth his lien and seeks for a foreclosure of the same. The defendants, the State of New York and the board of managers of the State Industrial School, each appeared by the Attorney-General, and by their answers they admit the making of the contract, and admit certain payments made to the contractors, and as defenses they allege that the contractors made default in not progressing with the work according to the terms of the contract, and that because of such fact the board of managers of the State Industrial School, after giving notice as required by the contract, cancelled

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the same and advertised for new bids, and completed the work at a large expense over and above the contract price, and that at the time of the filing of the several liens there was no money due to the contractors from the State of New York, and none to become due in pursuance of the terms of the contract.

By the terms of the contract eighty-five per cent. of the value of the materials and work incorporated in the building, as certified by the State Architect, was to be paid monthly as the work progressed, and the balance was to be paid upon the satisfactory completion of the contract, when so certified by the architect.

This action was tried at the Monroe Equity Term in October, 1906, before Mr. Justice Dunwell, who died before rendering a decision in the case, and, by stipulation of all the attorneys, it was submitted to the undersigned for decision.

The first of the liens was filed July 29, 1905, and the last February 13, 1906, and this action was brought February 6, 1906.

The defendant, the People of the State of New York, demurred to the complaint, on the ground that the court had no jurisdiction of the person of the defendant, the People of the State of New York, and that the People of the State could not be sued without their consent, and that no consent had been given or alleged.

Subsequently, and on the 5th day of May, 1906, a stipulation was entered into between the plaintiff's attorney and the Attorney-General, representing the State of New York, to the effect that inasmuch as an act had recently been passed by the Legislature, permitting the plaintiff in an action of this character to make the State a party defendant, the demurrer above referred to was withdrawn, without costs to either party, and the defendant, the People of the State of New York, was given twenty days after the date of the stipulation within which to answer the complaint, and subsequently, and on or about the 11th day of May, 1906, the State of New York, by its Attorney-General, appeared generally in the case and served an answer in which nothing

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was said about the State not properly being made a party, but setting up as a defense that the contractors failed to perform the contract according to its terms, and the board of managers of the State Industrial School cancelled the contract, and that the contract was completed by other parties at an additional cost to the State of about $40,000; that at the time of the filing of the several liens referred to in the complaint there was no money due to the said contractors from the State of New York, nor did any become due thereafter in pursuance of the contract above referred to, and judgment was demanded in behalf of the People of the State of New York to the effect that the complaint be dismissed, with costs.

At the conclusion of the plaintiff's evidence the Attorney-General moved for a dismissal of the complaint upon three grounds, as follows: First. That the defendants, lienors, never commenced any action or served any notice of pendency on the Comptroller. Second. That the plaintiff lienor failed to file a notice of pendency of this action after April 19, 1906, when the amendment permitting the State to be sued went into effect. Third. That at no time was there any fund to which the liens could be attached.

Mechanic's liens are purely the creatures of the statute, and the General Lien Law, passed in 1855, did not apply to public property.

By the Laws of 1897 (chaps. 418, 419), the present Lien Law was enacted, and in 1902 section 5 of the Lien Law was amended as follows: 'A person performing labor for or furnishing materials to a contractor, his sub-contractor or legal representative, for the construction of a public improvement, pursuant to a contract, by such contractor, with the state or a municipal corporation, shall have a lien for the principal and interest of the value or agreed price of such labor or materials upon the moneys of the state or such corporation applicable to the construction of such improvement, to the extent of the amount due or to become due on such contract, upon filing a notice of lien as prescribed in this article.' Laws of 1902, chap. 37.

And by the same act it was provided that a person performing

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work or furnishing materials for a public improvement might file a notice of lien with the head of the department having charge of such construction, and with the Comptroller of the State.

Section 16 of the Lien Law provides, among other things, 'that if a lienor is made a party defendant in an action to enforce another lien, and the plaintiff or such defendant has filed a notice of the pendency of the action within the time prescribed in this section, the lien of such defendant is thereby continued. Such action...

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