Halsted & Harmount Co. v. Ariok

• Decision Date: 06 January 1904
• Citation: 56 A. 628,76 Conn. 382
• Court: Connecticut Supreme Court
• Parties: HALSTED & HARMOUNT CO. v. ARIOK. et al. (three cases).

56 A. 628

76 Conn. 382

HALSTED & HARMOUNT CO.

v. ARIOK. et al. (three cases).

Supreme Court of Errors of Connecticut.

Jan. 6, 1904.

Appeal from Superior Court, New Haven County; Edwin B. Gager, Judge.

Proceedings by the Halsted & Harmount Company against Maier Arick and others to foreclose a mechanic's lien. From a judgment for plaintiff, some of the defendants who were subsequent incumbrancers appeal. Affirmed.

In March, 1897, the defendant Maier Arick owned a piece of land in New Haven, 150 feet square, situated on the westerly side of Ashmun street and the southerly side of Admiral street, and on March 30, 1897, mortgaged said land to Harry Matz and others for the purpose of raising money to be used in the construction of three buildings on said land. On May 4, 1897, Arick gave to the plaintiff a writing of the tenor following: "New Haven, Conn., May 4, 1897.

"In consideration of the furnishing of material by The Halsted & Harmount Co. for the building of my three new houses on Admiral St., corner Ashmun St., I herein agree to pay in full for all material contracted for and charged to my a/c up to the time of the buildings being in readiness for the 'brown mortar,' at which time of the construction of the buildings I shall be entitled to a first payment on mortgage loan on said buildings. As additional security, I also agree to give my note, payable on demand, secured by mortgage on my property on Eaton St., No. 25, No. 27, & No. 29. his.

"M. X Arick." mark.

On the same day the plaintiff commenced to furnish material (i. e., lumber) for each of the three new buildings which Arick had undertaken to construct, and ceased to furnish said material for each of said buildings on September 8, 1897, and on October 7, 1897, filed the certificate of lien, to foreclose which this action is brought; describing therein the land on which the middle one of said three buildings stood, and stating the value of the material furnished for said building. On the same day it filed two similar certificates of lien for the materials furnished in the construction of each of the two other buildings. Subsequent to the incumbrance of these liens, Arick's land became subject to many incumbrances, consisting of mortgages, mechanics' liens, and attachments. On December 31, 1897, Harry Matz and others brought to the city court of New Haven an action of foreclosure against Arick and the subsequent incumbrancers, including this plaintiff. Judgment of foreclosure was rendered by the city court on April 20, 1899, by which the time for redemption was limited to November 27, 1899. Upon the rendition of this judgment, Arick and some of the subsequent incumbrancers appealed to the superior court to be held on the first Tuesday of June, 1899. Other incumbrancers, including this plaintiff, did not appeal. The cause was duly entered in the superior court, and there tried de novo. While the foreclosure action thus brought by Matz and others was pending in the superior court, this plaintiff commenced this action of foreclosure in the superior court against Arick and the incumbrancers subsequent to the plaintiff. At the time this action was commenced, two other independent actions of foreclosure were commenced by the plaintiff in the superior court to foreclose his two other liens above mentioned. The court consolidated with this case (No. 489) the two other cases (Nos. 490 and 491) for the purposes of trial. On the same day that the superior court rendered judgments in these three actions commenced by plaintiff, it also rendered judgment in the said foreclosure action brought by Harry Matz and others. Some of the defendants appealing from the judgment in this action were also defendants in the action of Matz et al. v. Arick, 56 Atl. 630, and appealed from the judgment of the superior court in that action.

William B. Stoddard, for appellants Corbett and others. E. P. Arvine and George E. Beers, for appellants.

Hyman L. Brown and others. James P. Pigott, for appellee.

P. J. Cronan. James H. Webb and Samuel C. Morehouse, for other appellees.

HAMERSLEY, J. (after stating the facts). This action is brought to foreclose a mechanic's lien filed in pursuance of section 4135 of the General Statutes of 1902. The defendants claim that the lien is invalid for three reasons:

1. It appears that at the time the building covered by this lien was erected the owner of the land erected a second building of the same size and construction, distant from four to six feet southerly, and a third building of substantially the same size and construction, distant from four to six feet northerly; that, at the time the plaintiff agreed with the owner to furnish lumber for the construction of the building in question, he also agreed to furnish lumber for each of tire two other buildings, and that these agreements were witnessed by a single writing; that between the building in question and the...