Milliken Bros., Inc. v. City of New York

Decision Date07 February 1911
PartiesMILLIKEN BROS., Inc., v. CITY OF NEW YORK et al.
CourtNew York Court of Appeals Court of Appeals

OPINION TEXT STARTS HERE

Appeal from Supreme Court, Appellate Division, First Department.

Action by Milliken Bros., Incorporated, against the City of New York and others. From a judgment for defendants, affirmed by the Appellate Division (135 App. Div. 598,120 N. Y. Supp. 841), plaintiffs appeal. Reversed, and new trial ordered.Charles A. Brodek, Frederick R. Ryan, William W. Robison, and Thomas C. Ennever, for appellants.

Arnold L. Davis and Archibald R. Watson, Corp. Counsel (Terence Farley, of counsel), for respondents.

CULLEN, C. J.

The action was brought to foreclose a mechanic's lien upon a public improvement, to wit, an armory constructed for the city of New York. The lienors were numerous, and all of them, as well as the principal contractor, the James D. Murphy Company and the city of New York, were parties to the action. The respondent here is the contractor. The appellants are several lienors who have been denied any right to payment out of the fund deposited by the contractor to discharge the liens and as a condition of obtaining payment from the city, on the sole ground that the liens were filed too late in point of time.

The trial court found: That on January 26, 1904, the respondent the James D. Murphy Company entered into a contract with the city of New York, by the armory board of the city, for the erection of an armory building in the borough of Manhattan for the sum of $619,532.33. That the work under said contract was prosecuted until the 8th of October, 1906, at which time the architects issued a certificate to the effect that the contractor was entitled to the amount remaining unpaid on the contract, to wit $96,091.24, less the sum of $2,000, to be retained as a guaranty under certain provisions of the contract, and less also the further sum of $1,000 to be retained for uncompleted work, leaving the amount certified for payment at $93,091.24. That on said date the armory board adopted the following resolution: ‘Resolved, that the armory board does hereby accept the [201 N.Y. 70]69th Regiment Armory from the contractors as completed with the reservation named in this resolution; that the Comptroller be authorized to pay to the James D. Murphy Company, contractors, the sum of ninety-three thousand and ninety-one and 24/100 dollars ($93,091.24) for the execution of their contract for the erection of the 69th Regiment Armory in the borough of Manhattan, being a payment in full with a reservation therefrom of one thousand dollars ($1,000) until the marble tablet, etc., are properly installed; and a further reservation of two thousand dollars ($2,000) as provided in the contract under paragraph Z for one year from the date of the issuance of the final certificate as a guarantee for the perfect working and efficiency of the steam heating apparatus; that the roofs of the building shall be made tight and any defects which may appear in the entire work.’ That said certificate and resolution were delivered to the comptroller of the city. That on November 17th the engineer in the department of finance reported to the comptroller that the electric work was defective, and recommended that $3,091 be retained until such defective work should have been made good. That thereupon the claim of the contractor was audited at $90,000, and in March following the comptroller drew his warrant for said sum.

As to the condition of the building, the trial court refused to find that it was completed on the date of the certificate and resolution, but did find that it was then ‘substantially completed,’ and that shortly thereafter it was occupied by the National Guard as an armory. It also found that on that date certain plumbing work required by the contract was uncompleted, to wit, the installation of water lines over the ammunition room in the armory, and that subsequently the contractor caused said water lines to be installed; that such plumbing work consisted of about 100 feet of 2 or 3 inch pipe. The dates the respective liens of the several appellants were filed are as follows: Jerome A. Jackson, November 20, 1906; Roebling Construction Company, November 21, 1906; Baker, Smith & Co., November 22, 1906; Patrick H. McNulty, December [201 N.Y. 71]13, 1906. It further found that between January 31, 1905, and November 16, 1906, the appellant Baker, Smith & Co. performed and furnished labor, work, and materials to the contractor in or about certain extra work in addition to that provided for by the contract between Baker, Smith & Co and the James D. Murphy Company, which extra work, labor, and materials ‘were performed and furnished in conformity with the terms of and towards the performance and completion of the aforesaid contract between the said James D. Murphy Company and city of New York * * * and were actually used in the execution and completion thereof.’ On these facts the trial court decided that each of the appellants' liens was invalid because not filed within 30 days after October 8, 1906, the date of the acceptance by the armory board, though it awarded the appellants personal judgment against the contractor for the amounts of their several liens.

Section 12 of the lien law provides: ‘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 furnishing materials to a contractor, his subcontractor, assignee or legal representative, may file a notice of lien.’ Consol. Laws, c. 33. Under the New York City consolidation act (Laws 1882, c. 410, § 1825), notice of lien was required to be filed within 30 days after the work was completed or accepted, but that statute has been repealed and the requirement of the present law is that it shall be filed within 30 days after ‘completion and acceptance.’ Both these requirements, completion and acceptance, are usually questions of fact. In this case, however, as already stated, the trial court refused to find more than a substantial completion of the contract, and the question presented to us is whether that is sufficient to set running the statutory time for filing liens. Though there are no decisions to be found in this state on the point, it seems to have arisen in several other states, and the authorities are uniform that the time to file a lien is to be reckoned from the date of performance of the latest work under the contract, regardless of acceptance or occupation by the owner. Lichty v....

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