Town & Country Linoleum & Carpet Co., Inc. v. Welch
| Decision Date | 18 February 1977 |
| Citation | 56 A.D.2d 708,392 N.Y.S.2d 517 |
| Parties | TOWN & COUNTY LINOLEUM & CARPET CO., INC., Appellant, v. Charles R. WELCH and Donald Kantak, Defendants, and Jack Gardner, Respondent. |
| Court | New York Supreme Court — Appellate Division |
Furtch & Oudemool, Dirk Oudemool, Syracuse, for appellant.
Peter A. Hopkins, Jr., Syracuse, for respondent.
Before MARSH, P.J., and MOULE, CARDAMONE, SIMONS and GOLDMAN, JJ.
Appellant, Town & Country Linoleum & Carpet Co., Inc., a subcontractor in the construction of an apartment house project in the Town of Clay, Onondaga County, filed a mechanic's lien in the amount of $34,694.20 on September 11, 1969. This sum represented the labor and materials it furnished to the project at the request of K.R.W. Development Corporation and Woodard Estates, Inc. Plaintiff's complaint alleges that the defendant, Jack Gardner, was one of the principal shareholders in K.R.W. and Woodard Estates, Inc. It further alleges that on July 19, 1970 the defendants proposed to transfer the apartment house project. In order to clear the project title, which was heavily encumbered by mortgages, judgments and liens, Charles R. Welch, one of the defendants, promised plaintiff that in consideration of the satisfaction of plaintiff's lien and payment to plaintiff of $20,816.52, defendants would pay plaintiff the balance of its lien in the amount of $13,877.68 when they sold an undeveloped contiguous parcel of land. Plaintiff alleges that Welch promised that defendants would execute an instrument evidencing this obligation and secure its payment by a lien upon the residual parcel of land. Plaintiffs further allege that Welch was authorized by defendant Gardner to bind him to this obligation and that defendants have refused to execute any binding instrument and that the residual parcel has been sold.
Defendant Gardner moved at Special Term to dismiss the complaint as against him, claiming that the obligation sought to be imposed upon him is barred under the Statute of Frauds. Special Term granted defendant Gardner's motion. We disagree.
Appellant claims that there has been a novation between the parties. If such is proved, it removes the case from the defense of the Statute of Frauds (56 NY Jur., Statute of Frauds, §§ 48, 78). For novation to exist there must be a previous valid obligation, agreement of all parties to a new contract, extinguishment of the old obligation and sufficient consideration (42 NY Jur., Novation, § 7)...
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