Lauer v. Dunn

• Citation: 22 N.E. 270,115 N.Y. 405
• Parties: LAUER et al. v. DUNN.
• Decision Date: 08 October 1889
• Court: New York Court of Appeals

115 N.Y. 405

22 N.E. 270

LAUER et al.

v.DUNN.¹

Court of Appeals of New York.

Oct. 8, 1889.

Appeal from supreme court, general term, fifth department.

Amelia E. Lauer and Henry Hauck sued Bernard Dunn, and recovered judgment for $714.70. The special term set aside the judgment, and ordered a nonsuit. On appeal this order was set aside by the general term. 5 N. Y. Supp. 161. From the order of the general term defendant appeals.

Walter S. Hubbell, for appellant.

J. S.Garlock, for respondents.

GRAY, J.

Under a contract between the defendant, as owner of certain property, and one Herle, for the construction of several buildings, these plaintiffs, as subcontractors, furnished labor and materials. The day after their completion, for a portion of the sum remaining due them, they received this writing from the contractor, Herle, viz.: ‘Rochester, N. Y., April 19, 1888. Mr. B. Dunn: Please pay A. E. Lauer & Co. seven hundred dollars, and charge to contract, and oblige WILLIAM HERLE.’ Plaintiffs presented to defendant Dunn, the same day, this order, but, after some discussion about paying, he did not then accept it, and put them off, and this suit is to recover the amount specified. There was due from the defendant to his contractor, on the completion of the buildings, the sum of $750, and there is no controversy on this head. By the terms of the contract 80 per cent. of the estimated value of labor and materials furnished from time to time was to be paid as the work progressed, and ‘the remaining twenty per cent. of the contract price within thirty days after the final completion of the work, and its acceptance by the architect.’ It was also provided in the contract that ‘in case any lien or liens * * * shall exist upon the property * * * at the time or times when * * * any payment is to be made, such payment, or such part thereof as shall be equal to not less than double the amount of or for which such lien or liens shall or can exist, shall not be payable at the said stipulated times, notwithstanding anything in this agreement to the contrary contained.’ The appellant argues that when the order was given nothing was due by him to the contractor, and therefore the order was inoperative to confer any right upon the plaintiffs. The argument is based on the idea that because the contract gave 30 days within which to make the final payment, after the completion of the work, that period must expire before anything could be said to be due to the contractor. A few days after the giving of this order liens were filed by various parties, and if the order was not operative to assign to the payees the right of the contractor to the moneys specified in it, then the subsequent lienors would have a lien upon the whole $750, payable to the contractor when the building was completed. It was conceded on the argument that if the owner had paid the amount of the order to plaintiffs when presented by them, he would have been protected in so doing. The proposition is undoubtedly true. The liability of the property owner to lienous is limited by the lien law to the...