Ogden v. Alexander

• Decision Date: 12 December 1893
• Citation: 140 N.Y. 356,35 N.E. 638
• Parties: OGDEN v. ALEXANDER et al.
• Court: New York Court of Appeals Court of Appeals

140 N.Y. 356

35 N.E. 638

OGDEN

v.ALEXANDER et al.

Court of Appeals of New York.

Dec. 12, 1893.

Appeal from supreme court, general term, fourth department.

Action by Charles E. Ogden against Elizabeth Alexander and others to foreclose a mechanic's lien. From a judgment of the general term (17 N. Y. Supp. 641) affirming a judgment entered on the report of a referee in favor of plaintiff, defendants appeal. Affirmed.

The opinion of the referee, referred to in the opinion of the court of appeals, is as follows:

‘The defendant Hill was the contractor, with Charles Alexander, for the erection of a dwelling house for the latter, upon a foundation prepared by him, and for the completion of the same, except the painting, for $3,495. The firm of Oliver & Ogden, hardware merchants at Walton, N. Y., contracted with Horace Hill to put in the furnace, do the plumbing, and put on the slate roof. The contract price for the furnance and plumbing was $350, and for the roofing 7 1/2 cents per square foot, amounting to $245.40. The firm also furnished hardware for the house, and put up some eave troughs, at Hill's request, not included in the other contract, at prices agreed upon. On July 29, 1889, when the principal part of the work and material, under the contracts, had been performed and furnished, the firm of Oliver & Ogden was dissolved. Ogden succeeded to and continued the business, was to complete the firm contracts, have its assets, and pay its debts. After the dissolution he completed the roofing contract, substantially completed the furnace and plumbing contract, and furnished some hardware to Hill, to be used in and upon the building, not included in any previous contract. On August 20, 1889, he filed and served the notice of lien, set forth in the 18th finding of facts. Other persons, who are made defendants, filed notices of liens, but none of them have appeared to establish them, the only parties answering, who have appeared at the trial, being the widow and heirs of Charles Alexander; so that no question between the plaintiff and any other lienor is involved, but the questions are solely between him and the widow and heirs, defending. The building was erected under the direction and supervision of Mr. Alexander, who knew of the Oliver & Ogden contracts with Hill, and of the work done under the same, and also of the other materials which they furnished. He also knew of the work done and the materials furnshed by the plaintiff after dissolution of the firm of Oliver & Ogden.

‘Objection is made that the notice of lien is defective, and does not comply with the requirements of the statute, in that it does not state with sufficient definiteness and certainty ‘the nature and amount of the labor and services performed, and of the materials furnished and to be furnished,’ as required by section 4, c. 342, Laws 1885. In preparing the notice a printed blank was used, in which are enumerated various kinds of work and labor performed and materials furnished which were not in fact performed or furnished in this case, but the notice does state, among other things, that the plaintiff has a claim in his favor, and as successor in interest of the firm of Oliver & Ogden, amounting to the sum of $512.45, ‘for work, labor, and services rendered * * * in mason, carpenter, and joiner work, * * * and for * * * hardware * * * and materials furnished, and to be furnished, in the erecting of the dwelling house, * * * in virtue of an agreement therefor with the said Horace Hill, contractor and builder, as aforesaid, in the erection thereof; * * * that said service has been fully rendered, and said materials have been fully delivered and furnished. * * * The furnace and appurtenances have not been fully completed.’ If the rights of subsequent lienors were involved in this case, the question would admit of very grave doubt whether this notice could be held sufficiently definite and explicit to protect the lien of the plaintiff against them, but, as has been stated, the rights of no such persons are involved. At the time this notice was filed, the only parties affected by it were Hill, the contractor, who made the contracts under which the labor was performed and materials were furnished for which the plaintiff claims, and Mr. Alexander, the owner, who superintended the work, and knew what was done and furnished for Hill, both by Oliver & Ogden and the plaintiff. Neither Hill nor Alexander could have been misled by the notice, for they both knew of the work performed and materials furnished, and the only payment which had been made was by Alexander himself for Hill, to the firm. The assignee under Hill's assignment for the benefit of his creditors does not defend, and the widow and heirs of Mr. Alexander have no rights superior to those he would have if living and defending.

‘The notice describes various kinds of work, among which is mason, carpenter, and joiner work, and among the furnishings mentioned and claimed for is hardware, and also states that the labor and materials were performed or furnished in virtue of an agreement therefor made with Hill. It appears that substantially everything furnished comes under the general description of hardware, some of which was affixed or adjusted to the building by the sellers, and some was sold to Hill, to be used in and about the building by him or Weaver, the subcontractor. The nature of the work performed and materials furnished, although not very definitely described, is embraced, I think, in the general description of the work and materials specified in the notice, and I do not think that, as between the plaintiff and the parties defending, the objection which has been considered was well taken. The defendants' counsel cites in support of his contention the case of Luscher v. Morris, 18 Abb. N. C. 67. The important question in that case was whether the Crouch liens, the notices of which were under the lien law of 1880, were valid, as against the liens of Stanchen, Eaton, and Pike, the notices of which were under the act of 1885. The Crouch lien notices merely stated that the claims were ‘for work, labor, and services rendered and materials furnished in the erection,’ etc., ‘of a dwelling house,’ and the referee held them invalid, as against the lien filed under the act of 1885, but he says: ‘Had those [the Crouch] notices stated even in substance the ‘nature’ of the labor and services performed or materials furnished, or to be furnished, I should be inclined to hold them sufficient; but when they are evidently intended to comply with the provisions of the old repealed statute of 1880, and do not in substance, in that regard, comply with the existing statute, they must be deemed inoperative, especially as against other liens which are sufficient compliances with the existing statute.' The case cited is not therefore hostile to the validity of the notice in this case, as against the parties attacking it, for it does state in substance, although somewhat obscurely, the nature of the labor and services performed and materials furnished. See, also, Hunter v. Walter, (Sup.) 12 N. Y. Supp. 60.

‘It is further objected that the notice is defective, for the reason that it fails to state against whom the lien is claimed. The statute provides that the lienor ‘may file a notice of lien in writing in the clerk's office of the county where the property is situated against which the lien is asserted, containing the names and residences of the claimants, the nature and amount of the labor services performed or the materials furnished or to be furnished, with the name of the owner of the premises against whose interest a lien is claimed, the name of the person by whom he was employed, or to whom he furnished or is about to furnish such materials, or whether all the work for which the claim is made has been actually performed or furnished, and, if not, how much of it, and also a description of the property to be charged with a lien,’ etc. The notice in question states that the claimant has a claim against Horace Hill; that Charles Alexander is the owner of the building and of the lands and premises on which it stands, describing them; and that the claimant has a lien on said building and lands, etc., on which it stands. The lien is against the premises, and not against the owner; and I think the notice, in the respect to which the objection relates, complies with the statute.

‘It is also objected that the notice untruthfully states that all the work for which claim is made has been actually performed or furnished. The notice states ‘that said service has been fully rendered, and the materials have been fully delivered and furnished,’ and then, in the nature of an exception, states that ‘the furnace and appurtenances have not been fully completed.’ It appears by the evidence of the plaintiff and the witnesses who were engaged for him upon the work that it was all completed, except making some connections of pipes in the cellar to some stationary tubs and some wire attachments to the furnace, the entire expense of which would be only a nominal sum, which they estimate at $2, but which would probably exceed that sum a little, and might amount to $5. This remaining work was suspended at the request of Mr. Alexander, owing to the soft condition of the cellar bottom, which had been recently cemented, but was afterwards tendered by the plaintiff. The contract had been substantially performed when the notice was filed, and I do not think a more particular statement of the work to be performed, and the value and expense of it, should be held to invalidate the lien. In the case of McMechan v. Baker, (City Ct. Brook.) 11 N. Y. Supp. 781, the contract price for erecting nine buildings was $1,665, and $1,159 had been paid. The claimant, in his notice, claimed the balance of $506 was due, and also $94 for extra work. In fact, work to the amount of $75 had not been performed, owing to the failure of the...