Berger Mfg. Co. v. City of New York

• Decision Date: 18 June 1912
• Citation: 206 N.Y. 24,99 N.E. 153
• Parties: BERGER MFG. CO. v. CITY OF NEW YORK et al.
• Court: New York Court of Appeals Court of Appeals

206 N.Y. 24

99 N.E. 153

BERGER MFG. CO.

v.CITY OF NEW YORK et al.

Court of Appeals of New York.

June 18, 1912.

Appeal from Supreme Court, Appellate Division, First Department.

Action by the Berger Manufacturing Company against the City of New York and others to foreclose liens. From a judgment of the Appellate Division (140 App. Div. 910,125 N. Y. Supp. 1112), affirming a judgment of the Special Term (67 Misc. Rep. 636,124 N. Y. Supp. 804), defendant Lewis F. Shoemaker & Co. appeals. Affirmed.

The city of New York entered into a contract with F. T. Nesbit & Co., a corporation, to erect an addition to a municipal building in the borough of Manhattan, and such company sublet a part of the contract to the American Structural Steel Company. The steel company entered upon the performance of its contract, but, before the same was fully completed, abandoned it. Pursuant to the terms of the contract, the Nesbit Company served upon the steel company a three days' notice to complete its contract, or it would complete the same and deduct the expense thereof from the price named in the contract. The steel company failed to perform, and the Nesbit Company completed said contract as provided by the contract and said notice. After completing the contract as stated, there remained due to the steel company from the Nesbit Company the sum of $2,720.52. There is no allegation or finding that the Nesbit Company made a payment to the steel company after the liens or any of them were filed. The steel company had previously sublet certain parts of its contract to the plaintiff, the Berger Manufacturing Company, and the defendants Lewis F. Shoemaker & Co. and Edward A. Goemann and Marco A. Sisti and the Hall's Safe Company, respectively. The plaintiff fully completed its contract with the steel company prior to July 17, 1908, and on August 21, 1908, filed a lien as provided by statute for $629.72, the amount then due and unpaid on its contract. The plaintiff did not commence an action to enforce said lien within three months after filing it, and on January 27, 1909, filed another lien for the same amount and for the same work and materials.

Lewis F. Shoemaker & Co. fully completed its contract prior to March 1, 1908, and on June 16, 1908, filed a lien as provided by statute for $2,350, the amount due and unpaid on its contract. On the 22d day of June, 1908, an undertaking was given by the Nesbit Company with the defendant the Bankers' Surety Company a surety as provided by the Lien Law. It failed to commence an action to enforce said lien within three months after the filing thereof, and this action was not commenced until after said three months had expired.

The defendants Goemann & Sisti fully completed their contract prior to October 26, 1908, and on October 28, 1908, filed a lien as provided by statute for $1,774.16, the amount due and unpaid on their contract, and on January 26, 1909, obtained an order from the Supreme Court extending their lien for six months.

The Hall's Company fully performed its contract prior to December 5, 1908, and on December 17, 1908, filed a lien as provided by statute for $500, the amount due and unpaid on its contract.

This action was commenced and a notice of the pendency of the action was duly filed January 28, 1909. All of the persons and corporations named were made defendants. The lienors severally answered the complaint and set forth in such answers the facts upon which they severally claimed a lien as required by the Lien Law. A trial of the action was had and a decision was made and judgment entered establishing among other things the liens of the plaintiff and of the defendants Goemann & Sisti and the Hall's Safe Company as claimed by them, respectively. The lien of the defendant Lewis F. Shoemaker & Co. was canceled and discharged of record because of its failure to commence an action to enforce its lien within three months after filing the same. There is no controversy between the parties to the action other than the Shoemaker Company as to the distribution of the amount found due and unpaid by the Nesbit Company.Horace L. Cheyney, for appellant.

Frank M. Avery, for respondents F. T. Nesbit & Co. and another .

Abner C. Surpless, for respondents Goemann & Sisti and Hall's Safe Co.

CHASE, J. (after stating the facts as above).

The Lien Law (Consol. Laws, c. 33) provides that ‘at any time before the construction of a public improvement is completed and accepted by the state or by the municipal corporation, and within thirty days after such completion and acceptance, a person performing work for or funishing materials to a contractor, his subcontractor, assignee or legal representative, may file a notice of lien. * * *’ Section 12. The lien is upon ‘the moneys of the state or of such corporation applicable to the construction of such improvement, to the extent of the amount due or to become due on such contract. * * *’ Section 5.

[1] The principal question for our consideration is whether the lien of the Shoemaker Company was lost by its failure to commence an action to enforce it within three months after it was filed. The duration of a lien is prescribed by statute, and the right to enforce it, like the right to file and create it, is derived therefrom, and each is entirely dependent upon its terms. It is expressly provided by statute that a lien for labor done or materials furnished for a public improvement ‘shall not continue for a longer period than three months from the time of filing the notice of such lien, unless an action is commenced to foreclose such lien within that time, and a notice of the pendency of such action is filed with the comptroller of the state or the financial officer of the municipal corporation with whom the notice of such lien was filed, or unless an order be made by a court of record, continuing such lien, and a new docket be made stating such fact. * * *’ Lien Law, § 18, former section 17. Such lien may be discharged as follows: ‘(1) By filing a certificate of the lien-or or his successor in interest, duly acknowledged and proved, stating that the lien is discharged. (2) By lapse of time, when three months have elapsed since filing the notice of lien, and no action has been commenced to enforce the lien. (3) By satisfaction of a judgment rendered in an action to enforce the lien. (4) By the contractor depositing with the comptroller of the state or the financial officer of the municipal corporation * * * a sum of money * * * which shall not be less than the amount claimed by the lienor, with interest thereon for the term of one year from the time of making such deposit, and such additional amount * * * to cover all costs and expenses. The amount so deposited shall remain with the comptroller or such financial officer * * * until the lien is discharged as prescribed in subdivision 1, 2, or 3, of this section. (5) Either...