Cummings v. Broadway-94th St. Realty Co.

• Decision Date: 31 May 1922
• Citation: 135 N.E. 832,233 N.Y. 407
• Parties: CUMMINGS v. BROADWAY-94TH STREET REALTY CO., Inc., et al.
• Court: New York Court of Appeals Court of Appeals

233 N.Y. 407

135 N.E. 832

CUMMINGS

v.BROADWAY-94TH STREET REALTY CO., Inc., et al.

Court of Appeals of New York.

May 31, 1922.

Action by Marcus E. Cummings, trading as M. R. Flooring Company, against the Broadway-94th Street Realty Company, Inc., and another. From an order of the Appellate Division (196 App. Div. 194,187 N. Y. Supp. 576), affirming a judgment in favor of defendant Pollack & O'Neill, Inc., against defendant named, defendant named appeals.

Modified and affirmed.

Appeal from Supreme Court, Appellate Division, First department.

Joseph A. Seidman, of New York City, for appellant.

Albert M. Lee and Arthur Ofner, both of New York City, for respondent.

McLAUGHLIN, J.

This action was brought to foreclose a mechanic's lien. After the commencement of the action it was discontinued so far as the plaintiff was concerned, and thereafter continued and tried as though Pollack & O'Neill, Inc., were the plaintiff and the Broadway-94th Street Realty Co., Inc., the defendant. At the trial it appeared that on or about the 17th of August, 1916, the defendant Pollack & O'Neill, Inc., entered into a contract with the Broadway-94th Street Realty Company, Inc., by the terms of which the former agreed to furnish all the materials and perform all the labor required in connection with the plumbing of a building in the city of New York belonging to the latter. The trial court found there was due Pollack & O'Neill, Inc., $4,965.55, besides costs and disbursements, and the lien filed by it therefor a valid lien upon such premises. Judgment was entered upon the decision for the amount found due, directing a foreclosure and sale. Both parties appealed to the Appellate Division-Pollack & O'Neill, Inc., only from that part of the judgment which disallowed interest upon the amount recovered. The Appellate Division unanimously affirmed the judgment, and denied leave to appeal to this court. The realty company then appealed, by permission of this court. The application of Pollack & O'Neill, Inc., for leave to appeal, however, was denied by this court. Notwithstanding that fact, it took an appeal from that part of the judgment disallowing interest. The decision of the Appellate Division being unanimous, and leave to appeal not having been given to Pollack & O'Neill, Inc., its appeal was unauthorized, and therefore is dismissed.

Simultaneously with the execution of the agreement by which Pollack & O'Neill, Inc., agreed to furnish the materials and perform the work necessary for the plumbing, it, for a valuable consideration, executed another agreement by which it--

‘covenants and agrees not to file any liens or to make any claims * * * against the aforesaid premises, or any part thereof, or against any building or buildings, or other improvements erected or made, or to be erected or made thereon, or against the leasehold interest aforesaid for any work that the said contractor may at any time do under the contract hereinbefore referred to, or any other, or for any materials that he may furnish thereunder, or for anything whatever done or to be done under and pursuant to such contract, or any other, or any modification thereof, or upon any other ground or nature or character whatsoever; and further covenants to release, and hereby does release, the premises above referred to and each and every part thereof and any and all buildings that may now or hereafter be erected thereon from any and every lien, charge or claim of any nature whatsoever that he might otherwise at any time have against the same, or any part thereof, for work done or to be done, or materials furnished, or to be furnished, or upon any other ground whatsoever, growing out of or in any way connected with or relating to the erection and construction of any building or buildings upon said premises.’

The trial court found that this agreement not to file a lien was rendered ineffectual by reason of the fact that the realty company had failed to pay the amount found due. The Appellate Division reached the same conclusion, relying upon the authorities of Greenfield v. Brody, 204 N. Y. 659, 97 N. E. 1105, and Kertscher & Co. v. Green, 205 N. Y. 522, 99 N. E. 146, Ann. Cas. 1913E, 561.

I am of the opinion neither of these authorities sustains that view. In the Greenfield Case the contract was for the constrution of several houses, and the contractors were to be paid in part by the conveyance to them of two of the houses. The owner transferred the property, and thus put it beyond his power to comply with the contract. It was held this authorized the contractors to file a notice of lien, notwithstanding the fact they had agreed not to do so....