See v. Kolodny
| Decision Date | 27 June 1917 |
| Parties | SEE v. KOLODNY et al. (two cases). |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
OPINION TEXT STARTS HERE
Report from Superior Court, Suffolk County; Jabez Fox, Judge.
Two petitions by Alonzo B. See against Charles Kolodny and others. Cases reported. Decrees for petitioner.
Arthur Berenson, Francis P. Garland, and Bernard Berenson, all of Boston, for plaintiff.
Philip Rubenstein, of Boston, for defendants.
These are two petitions to establish mechanics' liens for labor and material furnished under written contracts with the defendant, Charles Kolodny, in installing two electric elevators, one in a building on Huntington avenue, Boston, the other in an adjoining building on Hemenway street, Boston. At the trial it was agreed that there was owing the petitioner the sum of $400 on the Huntington avenue contract and the sum of $2,400 on the Hemenway street contract.
The contract on Huntington avenue was dated May 15, 1913. The price fixed was $2,400. October 30, 1913, $2,000 of this amount was paid by the defendant in cash and running notes which were afterwards paid. The balance, $400 of a $500 note, was ultimately represented by a renewal note dated February 16, 1914, payable on April 17, 1914. This last note is now unpaid and at the trial was tendered by the petitioner to the defendant. The elevator in the building was turned over for operation to the defendant on November 18, 1913, and on that date was approved by the building inspector. Although the petitioner performed or furnished the labor for adjusting, repairing and testing work on this elevator and charged the defendant for it on six occasions between December 16, 1913, and September 10, 1914, there is no evidence that any work under the contract was done between November 18, 1913, and January 26, 1915. On the last named day two men under the direction of the petitioner did work to the value of $4.90 which work is claimed to have been uncompleted work under the terms of the contract.
The contract relating to the elevator to be installed in the building on Hemenway street was dated November 7, 1913. The price was $2,400 and no part has been paid. This elevator was turned over for operation to the defendant in June, 1914. January 26, 1915, the petitioner in alleged performance of the terms of the contract caused work to be done upon this elevator to the value of $6.80. No other work had been done under the contract between June, 1914, and January 26, 1915, except on July 15, 1914, and on September 30, 1914.
Within 30 days after January 26, 1915, certificates claiming liens were filed in the registry of deeds in Suffolk county and thereafter within 90 days, on March 25, 1915, petitions to enforce the liens were duly filed. On February 28, 1916, in the superior court, the defendants in both petitions moved to dismiss the proceedings ‘for want of jurisdiction in this court to proceed further owing to St. 1915, c. 292,’ which act was approved May 28, 1915, and took effect January 1, 1916. The motion was denied rightly. In this commonwealth a mechanic's lien is not created upon the filing of certificate and petition, but is created as soon as labor or material or both is performed or furnished on real estate. The lien is an interest in the property, stands as security for the payment of the debt, is a vested right and is not an additional and extraordinary remedy which the Legislature may discontinue at pleasure. Clifton v. Foster, 103 Mass. 233, 4 Am. Rep. 539;Wiley v. Connelly, 179 Mass. 360, 60 N. E. 784;Warren v. Woodard, 70 N. C. 382;Craig v. Herzman, 9 N. D. 140, 81 N. W. 288; Weaver v. Sells, 10 Kan. 609; Sabin v. Connor, Fed. Cas. No. 12,197. In accordance with the general rule the statute must be construed as intended to have a prospective and not a retroactive effect where, as in the case at bar, a retrospective construction will interfere with vested right. Wright v. Oakley, 5 Metc. 400, 407;Com. ex rel. Springfield v. Co. Commissioners, 6 Pick. 501, 508;Hellen v. Medford, 188 Mass. 42, 46, 73 N. E. 1070,69 L. R. A. 314, 108 Am. St. Rep. 459;Bronson v. Kinzie, 1 How. 311, 11 L. Ed. 143;Steamship Co. v. Joliffe, 2 Wall. 450, 17 L. Ed. 805;Edwards v. Kearzey, 96 U. S. 595, 600, 24 L. Ed. 793;Hanscom v. Malden & Melrose Gaslight Co., 220 Mass. 1, 4, 107 N. E. 426, Ann. Cas. 1917A, 145, and cases collected. That such was the intention of the Legislature, see St. 1916, c. 163; St. 1917, c. 213.
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