Case Son Mfg. Co. v. Young Improvement Corp.

Full title: W.A. CASE SON MANUFACTURING COMPANY, Appellant, v . YOUNG IMPROVEMENT…

Court: Appellate Division of the Supreme Court of New York, Second Department

Date published: Feb 15, 1918

181 App. Div. 740 (N.Y. App. Div. 1918)

168 N.Y.S. 1025

Opinion

February 15, 1918.

Arleigh Pelham [ Francis Stockton McDivitt with him on the brief], for the appellant.

Max Herzfeld [ Clarence E. Mundy with him on the brief], for the respondents.

PER CURIAM:

Plaintiff had supplied plumbing materials to the Midwood Plumbing Company, a contractor with the Young Improvement Company, which was erecting eight apartment houses. As a subcontractor, plaintiff had to show that on October 23, 1916, when it had filed and served its notice of lien, there were moneys due the contractor, the Midwood Plumbing Company. Plaintiff also sued as assignee of the Midwood Plumbing Company, under an assignment of the Midwood Plumbing Company lien, which had been filed and assigned on September 29, 1916.

The proofs abundantly established a deliberate breach by the Midwood Company by use of bad material, and a complete abandonment of the work. The lien was bad in form. In substance there was non-performance.

It appeared that, before this breach, the defending owner had advanced the embarrassed contractor two promissory notes, each for $500, which, after its breach, were not paid.

When the court had heard the case, and had disposed of the findings and requests to find, plaintiff asked to reopen the case so as to submit further findings in order to ask a personal judgment upon these notes, which motion the court denied.

A proceeding to foreclose mechanics' liens, like other actions, must follow the pleadings or at least the theory of the trial ( Dinkel v. Roman Catholic Church of St. Teresa, 150 App. Div. 848) and the requests submitted. After decision is announced, a motion to reopen the cause and to submit new requests is really to inject into the trial (after it has closed) a new liability, not raised by the complaint. We see no reason to question the exercise of discretion that denied such a belated application.

The contractor's non-performance was wilful and substantial, leaving nothing on which the plaintiff's lien could attach.

The judgment and order should be affirmed, but with a single bill of costs on this appeal.

JENKS, P.J., THOMAS, MILLS, RICH and PUTNAM, JJ., concurred.

Judgment and order unanimously affirmed, but with a single bill of costs on this appeal.