Noce v. Kaufman

• Decision Date: 28 February 1957
• Citation: 161 N.Y.S.2d 1,141 N.E.2d 529,2 N.Y.2d 347
• Parties: , 141 N.E.2d 529 Joseph NOCE et al., as Copartners, under the Firm Name of Noce Bros., Appellants, v. Ephraim J. KAUFMAN et al., Respondents, et al., Defendant.
• Court: New York Court of Appeals Court of Appeals

Page 1

161 N.Y.S.2d 1

2 N.Y.2d 347, 141 N.E.2d 529

Joseph NOCE et al., as Copartners, under the Firm Name of Noce Bros., Appellants, v. Ephraim J. KAUFMAN et al., Respondents, et al., Defendant.

Court of Appeals of New York.

Feb. 28, 1957.

Samuel C. Pilato, Rochester, for appellants.

William MacFarlane, Rochester, for Ephraim J. Kauffman (sued herein as Ephraim J. Kaufman), respondent.

Nathan H. Richman, Albany, in person, Joseph Feldman, Herbert M. Rosenberg and Irwin H. Rosenberg, New York City, for Nathan H. Richman (sued herein as Nathan R. Richmond) and another, respondents.

VAN VOORHIS, Judge.

The first cause of action, which is the only one at issue upon this appeal, is to foreclose a mechanic's lien for labor and materials against the real estate owned by the respondent Ephraim J. Kaufman, known as the Mona Lisa Hotel, at the corner of University Avenue and Scio Street, in the city of Rochester. Plaintiffs allege that they were the general contractors under agreement with Kaufman. The complaint alleges that Kaufman subsequently deeded the property to defendants Richmond, whom the complaint charges with personal liability for the improvements on the basis that they orally promised to plaintiffs that Kaufman would pay for them.

In our view, the Appellate Division correctly held that plaintiffs' mechanic's lien lapsed, due to plaintiffs' failure to file a notice of pendency within one year from the filing of the lien, Lien Law, § 17; Danziger v. Simonson, 116 N.Y. 329, 333, 22 N.E. 570; White v C. M. McLean & Sons, 235 App.Div. 342, 257 N.Y.S. 65; National Lumber Co. v. F. Braun & Son, 237 App.Div. 426, 428-429, 261 N.Y.S. 715, 717-718; Bradley & Son v. Henry Huber Co., 146 App.Div. 630, 131 N.Y.S. 388, affirmed 210 N.Y. 627, 105 N.E. 1102, that consequently judgment of foreclosure and sale cannot be directed against any of the parties to the action, and that no personal liability exists against defendants Richmond in the absence of evidence of an express or implied agreement by them to pay for these improvements, of which there is none except an oral guarantee of Kaufman's obligation which is unenforcible under the Statute of Frauds, Personal Property Law, Consol.Laws, c. 41, § 31, subd. 2; but we conclude that under sections 17 and 54 of the Lien Law, Consol.Laws, c. 33, plaintiffs were entitled to personal judgment against Kaufman, reduced, however, on the law, below the amount which was awarded to plaintiffs by the Official Referee. The contention of defendant Kaufman, sustained by the Appellate Division, is overruled that there can be no recovery of a personal judgment against him due to the circumstance that the complaint alleges a contract to make these improvements in consideration of a specific sum, whereas the evidence supports only a recovery in quantum meruit. Under the New York rule, such a variance between pleading and proof may be disregarded unless it has misled the defendants. Sussdorff v. Schmidt, 55 N.Y. 319, 324; Rubin v. Cohen, 129 App.Div. 395, 113 N.Y.S. 843; Shirk v. Brookfield, 77 App.Div. 295, 298, 79 N.Y.S. 225, 227. This record indicates that these defendants could not have been misled, inasmuch as the case was tried throughout upon the theory of quantum meruit.

Although plaintiffs are entitled to personal judgment against Kaufman as the Official Referee held under sections 17 and 54 of the Lien Law, notwithstanding that the complaint asks only for the foreclosure of a mechanic's lien, nevertheless the personal judgment which may be granted under these sections is limited to such items as could be the subject of a mechanic's lien. McGraw v. Godfrey, 56 N.Y. 610; Darrow v. Morgan, 65 N.Y. 333, 338. This signifies that such items of labor or materials can be recompensed in the personal judgment against Kaufman as became part of the real estate, since under a cause of action to foreclose a mechanic's lien there can be no recovery for goods sold and delivered which have always remained personal property.

The Appellate Division reversed the material findings of the trial court and dismissed the complaint on the further ground that 'The testimony with reference to any amount claimed to be due is so contradictory, uncertain and confusing that a determination of any such amount would be based on mere speculation.' (286 App.Div. 531, 145 N.Y.S.2d 644) We read the record differently in this respect, except for several items hereafter noted. With those exceptions, each item of labor or materials with its reasonable value separately stated, as found in the report of the Official Referee, is supported by oral testimony of Joseph or Sam Noce. In many instances the testimony of these plaintiffs is confirmed by that of the materialman or workman, the greater number of items are supported by voucher checks in evidence, the fact that the Noces had funds at their disposal to be spent for the work has been proved by bank records and by testimony of persons who loaned them money, and in various instances the testimony of the witness has been supported by written aids to recollection that were produced and marked for identification. Plaintiffs' testimony might have been more systematic, if they had received more formal education, and if their records had not been kept by their present adversary Kaufman who, although an accountant, did not contradict any specific item found by the Official Referee. Kaufman had opportunity to do so while testifying as a witness for plaintiffs, but contented himself with the generalization that he 'paid all the material, all the labor that went into University Avenue'. Such a conclusory statement is evidence of nothing. In finding the facts against Kaufman, the Referee properly applied the rule that where an adversary withholds evidence in his possession or control that would be likely to support his version of the case, the strongest inferences may be drawn against him which the opposing evidence in the record permits. Perlman v. Shanck, 192 App.Div. 179, 182...