Opinion
December 24, 1915.
Robert Gibson, Jr. [ Mark D. Wilber, George A. Nagle and Leander B. Faber with him on the brief], for the plaintiff and the defendants Vulcan Rail and Construction Company and others.
Edward J. Mastaglio [ John K. Berry with him on the brief], for the appellant New York Dock Company.
Robert Thorne [ Amos J. Peaslee with him on the brief], for the appellant Atlas Portland Cement Company.
Oscar H. Stearns, for the appellant Orman W. Ketcham.
A contractor abandoned his work and the owner completed pursuant to a clause in the contract permitting him to do so. Lienors, materialmen, assert liens to the extent of the difference between the cost of completion and the amount of the contract price unpaid when the liens were filed. They met the burden of proving the essential fact of that difference by the certificates of the owner's architects certifying to the cost of completion. The owner does not complain of the competency of that evidence, and the lienors have no other foundation for their judgment. ( Beecher v. Schuback, 1 App. Div. 359, 365; affd. on opinion below, 158 N.Y. 687; Zimmermann v. Jourgensen, 14 N Y Supp. 548, 549; Watts v. Board of Education, 9 App. Div. 143. ) On this appeal, however, the lienors would impeach the certificate on a question of fact in relation to the payment of wages of the laborers on the job for the week in which the work was abandoned. This item may be fairly within the proper scope of the certificate. Non constat but that the owner would have been able to show that the payment was necessary to complete the work had the lienors adopted another method of proving their cause of action.
There is sufficient evidence to sustain, as proper and lawful payments on account of the contract price, the items of $35,000 and $5,783.84. The owner counterclaimed for damages for delay, liquidated, not actual. To such damages it was not entitled. ( Mosler Safe Co. v. Maiden Lane S.D. Co., 199 N.Y. 487, 488; Crawford v. Becker, 13 Hun, 375.) The services of the architect were no part of the contract which the owner was completing on the contractor's account. The notice of lien of the Atlas Portland Cement Company is fatally defective. It fails to state the materials furnished to the real property described in the notice as subject to the lien, and the agreed price and value thereof. This the Lien Law expressly requires. (Lien Law [Consol. Laws, chap. 33; Laws of 1909, chap. 38], § 9; Mahley v. German Bank, 174 N.Y. 499, 501.) It grouped in the notice materials furnished under several contracts for the improvement of distinct pieces of real property widely separated; being improved as independent operations. Provision being made for the adjustment of priorities of conflicting liens where several pieces of property are improved under one contract (Lien Law, § 13), there is indication that the Legislature did not intend that a valid lien could be acquired by the notice under examination. (See Leske v. Wolf, 154 App. Div. 233; Chapin v. Persse Brooks Paper Works, 30 Conn. 461, 473.) One who furnishes to a contractor, but does not install, steel sash as called for by plans and specifications, and by whom working drawings are to be submitted for approval, and who neither employed nor performed any labor on the sash after delivery, is a materialman.
The judgment should be affirmed, without costs.
JENKS, P.J., THOMAS, CARR, STAPLETON and PUTNAM, JJ., concurred.
Judgment affirmed, without costs.