Opinion
March, 1893.
James Kearney, for defendant (appellant).
John C. Coleman, for plaintiffs (respondents).
The action was brought to foreclose a mechanic's lien for a balance of $800, claimed to be due under a certain contract between plaintiffs and defendant Lennon, for painting and other work upon five houses on West Ninety-ninth street in this city. The complaint alleged performance, which was denied by the answer.
The referee found that the contract was substantially performed, and after allowing $100 for some shortcomings, found that the plaintiffs were entitled to $700 and interest, and that they had a valid lien for that amount.
The defendant contends that the findings show a failure of plaintiffs to perform the contract in two substantial particulars, viz., to complete the work on or before April 15, 1890, and to use Atlantic lead paint on all the outside iron and woodwork according to agreement. Proof was admitted to show that the time of performance was extended by defendant, and that other paint, equally as good as Atlantic white lead, was substituted for the latter with his consent. It is objected, however, that this proof was improper under an averment of performance, as it was in effect evidence of waiver, or an excuse for nonperformance, which should have been specially pleaded. No such objection was taken to the evidence when offered, and this was essential to raise the point upon appeal, as in the case cited by appellant. Elting v. Dayton, 17 N.Y.S. 849. The evidence of the extension of the time of completion was admitted without any objection whatever by defendants, and the consent of the latter to the use of other white lead paint was objected to solely on the ground that it was not in rebuttal. In the absence of timely and specific objection and proper exception, defendant should not be permitted to raise this question for the first time on appeal.
The evidence was competent on the question of substantial performance. It showed that time was not essential, and that completion was allowed and accepted after the date fixed. It also showed that defendant consented to the use by the plaintiffs of one paint for another, they being of equal quality and price.
On the general question of the performance of work in other respects by the plaintiffs the evidence was conflicting and there seems to be no reason for disturbing the findings of the referee.
The allowance of $100 for omissions is complained of on the ground that there was no evidence that that sum was fair and reasonable. The defendant produced bills for work done to supply alleged deficiencies amounting to a little over $100. Other testimony showed the expense to be greater. Plaintiffs gave no testimony and the referee was justified in fixing the allowance as stated.
The validity of the lien is questioned on account of the verification, which states that "the statements therein contained are true to his knowledge or information or belief." This form of verification is in the precise language of the statute and has been held to be proper. Schwartz v. Allen, 7 N.Y.S. 5. The opinion in that case was carefully considered, and it was held, citing the authorities, that a verification in the exact language of the statute is sufficient (2 Wait's Pr. 339), and that it was not necessary to designate in the verification what particular statements in the lien notice are sworn to upon knowledge, and what upon information and belief. We have decided the same way in this court ( Conover v. Lennon, General Term, May, 1892).
The judgment should be affirmed, with costs.
BISCHOFF and PRYOR, JJ., concur.
Judgment affirmed.