Opinion
Argued December 7, 1905
Decided January 9, 1906
George W. Weiffenbach for appellant.
Henry W. Bookstaver and Algernon S. Norton for respondent. James W. McElhinney for Howard White et al., defendants respondents.
Henry M. Brigham for Goetz Manufacturing Company, defendant respondent.
The plaintiff is the assignee of a claim and mechanic's lien filed by a building contractor under a contract made by him with one Christian Blinn. Blinn was the owner of the property and made the contract with the plaintiff's assignor for the material and labor constituting the plumbing work of the building. Numerous parties were made defendants in the action. Some of them made default and others answered, and the issues in the case were decided at the trial in favor of the plaintiff. None of the parties to the action have appealed from the judgment of the court below except the defendant Alice B. Colcord, so that the only questions in the case with which we are concerned are questions arising between the plaintiff and this single defendant.
Mrs. Colcord defended the action, mainly upon the ground that she purchased the premises through conveyances from Christian Blinn, her brother, before she had any notice of the plaintiff's claim, or that of his assignor. But the trial court held that the various conveyances under which she claimed title free from the mechanic's lien were fraudulent and void; that they were made by connivance between Mrs. Colcord and her brother to hinder, delay and defraud his creditors. The principal question argued by her counsel upon this appeal is that the finding referred to is not only contrary to the evidence, but without any evidence at all to sustain it. We think that this contention cannot be sustained. The record contains a mass of proof from which the inference is fairly deducible that the conveyances were for the fraudulent purposes stated in the decision of the trial court. So we will pass that question as having been settled by the proofs and findings at the trial.
There is another question in the case that does not appear to have received much attention by way of argument by the learned counsel for the appellant, though there is a statement in his brief which covers it. The judgment at the trial was for the foreclosure of the lien and the sale of the property in the usual way. The learned Appellate Division struck out that provision of the judgment which adjudged a lien in favor of the plaintiff and inserted a provision that a personal judgment should be rendered against the defendant Mrs. Colcord. We do not think that a personal or money judgment against her was authorized under the circumstances of the case. Such a judgment, in an action to foreclose a mechanic's lien, is proper as against the owner or contractor who has promised to pay the consideration for the work and labor. But the defendant was a subsequent grantee who had made no promise in any form to pay for the labor and materials used in plumbing the house. Nor had she assumed her brother's obligation in that respect. So there was no basis whatever for a personal judgment against her.
The judgment of the learned trial court in directing a foreclosure of the lien and a sale of the property under it was, therefore, correct. The only reason that I can discover for making this change in the form of the judgment is contained in a sentence of the opinion of the learned court below, and from that I infer it was supposed that the notice of lien was not sufficient to affect the title to the property. In this I think the learned court was mistaken. There have been come recent decisions in this court in regard to the validity of mechanics' liens under the statute. ( Toop v. Smith, 181 N.Y. 283; Mahley v. German Bank of Buffalo, 174 N.Y. 499.) But nothing was decided that would warrant the court in holding that the notice of lien in the present case was defective. It will be seen that in the case last decided and here cited the defects related entirely to the want of a sufficient description in the notice of the nature of the work or the character of the materials. The notice in the present case seems to me to be entirely free from that objection and to be in compliance in all respects with the provisions of the statute. The labor and materials used in the work are described in the following words:
"The labor performed or to be performed is plumbing and gas fitting, and the materials furnished or to be furnished and the agreed price or value thereof is iron, lead and brass pipe and fittings and castings, baths, sinks, basins, tubs, closets and other sanitary materials at the contract price of $7,300.00."
It is alleged in the complaint that the notice of lien was filed in compliance with the provisions of the statute. This allegation was denied in the answer, but the trial court found that it was filed and complied in all respects with the provisions of the law. There was no specific exception to this part of the decision of the court. The record contains nothing but a general exception, which was not available to raise any question of this kind on appeal. ( Ross v. Caywood, 162 N.Y. 259; Gerding v. Haskin, 141 N.Y. 514, 520; Booth v. Bunce, 31 N.Y. 246; Binsse v. Wood, 37 N.Y. 526; Thayer v. Marsh, 75 N.Y. 340; Sterrett v. Third Natl. Bank of Buffalo, 122 N.Y. 659; Quinlan v. Welch, 141 N.Y. 158.)
So that the condition of the case, as it now stands, is this: The learned Appellate Division struck out of the judgment a provision to which the plaintiff was entitled, and has substituted in its place another provision to which he was not entitled. I think that this court has power to correct the judgment in this respect by striking out the provision for a personal judgment and restoring the provision for the foreclosure of the lien. The statute provides that "in any action on an appeal to the Court of Appeals, the court may either modify or affirm the judgment or order appealed from, award a new trial, or grant to either party such judgment as such party may be entitled to." (Code of Civil Procedure, § 1337.) The appealing defendant now objects to the personal judgment against her, but it was a substitute for the judgment of the trial court, which directed a sale under the lien. To strike out the provision authorizing a personal judgment without restoring the original provision would leave the case without any judgment at all, and such a situation, we think, was not contemplated by the Code, or by any recognized rule of practice.
The judgment should, therefore, be modified by striking out the provision for a personal judgment, so far as it affects Mrs. Colcord, and restoring the original provision adjudging the lien and sale thereunder, without costs to either party in this court.
CULLEN, Ch. J., GRAY, BARTLETT, HAIGHT, VANN and WERNER, JJ., concur.
Judgment accordingly.