Opinion
May, 1896.
Cantor Van Schaick, for appellants.
Blandy, Mooney Shipman, for respondent.
This is an appeal from a judgment in favor of the plaintiff in an action to foreclose a mechanic's lien.
The trial judge found that the defendant Altieri, the contractor, is indebted to the plaintiff in the sum of $202.50; a part thereof, to wit: $71.10, was incurred for work done on the One Hundred and Eighth street house, owned by defendant Mayer, and adjudged said claim of $71.10 to be a lien on said premises and gave a personal judgment against the contractor for $131.40.
There is sufficient evidence in the case to sustain these findings.
Section 15 of chapter 342 of Mechanic's Lien Law of 1885 warrants a personal judgment against a party, if claimant fails to establish a valid lien.
Appellant complains that plaintiff alleging in her complaint the work to have been contracted for and done at one place, to wit: One Hundred and Eighth street house, she cannot introduce evidence of work done elsewhere.
The defendant contractor at no stage of the case claimed any surprise. He had the bill of particulars. He admits that he owed the plaintiff on One Hundred and Nineteenth street and Sixty-eighth street and One Hundred and Forty-fourth street jobs. He had the teams subject to his order and control and directed them from one job to the other. The evidence shows that work was done only incidentally for these other places, by hauling materials from them to One Hundred and Eighth street and vice versa.
The contractor owes the money to plaintiff, for the work done by her, and whether done at One Hundred and Eighth street house or the other jobs mentioned is immaterial, since no surprise was claimed, which makes the rule applicable, "that on appeal, an amendment to conform the pleadings to the proof is allowable to sustain a judgment."
As to the two exceptions referred to in the second point of appellant's brief, I consider them unimportant in this case, because the trial was had by the court and not by the jury and there is evidence sufficient in the case to sustain the findings, even if the two questions and answers objected to are expunged from the record.
The appellant's point, "that plaintiff is not the real party in interest," avails him not.
Stapleton testified that he told Altieri that he was doing business in his wife's name, but he did not tell him that it was his wife and not him who was making this contract. Assume that Mrs. Stapleton was an undisclosed principal, she could bring the action, whether Altieri knew her or knew her not.
Mr. Stapleton is estopped by his evidence herein from claiming any recovery for the subject-matter involved herein.
No double liability can result to appellant and a single liability he had incurred and been properly adjudged for herein.
Judgment affirmed, with costs.
CONLAN, J., concurs.
Judgment affirmed, with costs.