Peck v. Brush
| Decision Date | 16 July 1915 |
| Citation | 89 Conn. 564,94 A. 981 |
| Court | Connecticut Supreme Court |
| Parties | PECK v. BRUSH et al. |
Appeal from Court of Common Pleas, Fairfield County; Howard B. Scott, Judge.
Action by Wilbur S. Peck against Chester H. Brush and others, to foreclose a mechanic's lien. Judgment for plaintiff, and the named defendant appeals. Reversed, and new trial ordered.
Spotswood D. Bowers, of Bridgeport, for appellant. J. Moss Ives and George Wakeman, both of Danbury, for appellee.
The only question which the defendant raises on this appeal is whether the plaintiff's lien properly covers the entire property included in the judgment of foreclosure; and the material facts bearing upon that issue are as follows: The premises described in the complaint consist of a lot of land in the city of Danbury 07 feet in width on Lincoln avenue and 124 feet in depth, formerly belonging to the defendant Kolpa, and conveyed to the defendant Brush after the plaintiff's certificate of lien was filed. The complaint alleges that the plaintiff furnished materials and rendered services in the construction and repair of "certain buildings" thereon, and the answer admits that the plaintiff furnished materials for the construction of one building only. The finding is that the plaintiff furnished materials for the construction of a dwelling on the property; that there are two other buildings on it, one of them a dwelling; that the materials furnished by the plaintiff did not go into either of these other buildings; and that the lot in question "is not susceptible of division."
On the authority of Wilcox v. Woodruff, 61 Conn. 578, 24 Atl. 521, 1056, 17 L. R. A. 314, 29 Am. St. Rep. 222, and other cases, of which the latest is Tramonte v. Wilens, 94 Atl. 978, the plaintiff's lien cannot cover any other buildings than the new building for whose construction he furnished materials, unless such other buildings are appurtenant to the new dwelling. Upon that issue the burden of proof is on the plaintiff, who claims to include in his foreclosure two buildings into which his materials or labor have not entered. Prima facie one dwelling on a city lot is not an appurtenance of another separate dwelling on the same lot, and there is no direct finding in this case that either of the older buildings is an appurtenance of the new. It follows that the plaintiff's lien cannot be stretched to cover these older buildings, unless the finding that the lot is not susceptible of division can be...
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