Opinion
July 17, 1961
In an action to foreclose a mechanic's lien upon real property owned by defendant Healy Ave. Realty Corp., in which defendants asserted defenses and counterclaims for damages by reason of plaintiff's defective and delayed performance of his electrical work under the contract between him and the defendant Solow Building Corporation, and by reason of plaintiff's wrongful filing of the lien, defendants appeal from a judgment of the Supreme Court, Queens County, dated July 1, 1960, and entered July 8, 1960, upon a decision of the court after a nonjury trial, dismissing such defenses and counterclaims, fixing plaintiff's lien in the amount of $8,334.25, and directing: (1) the foreclosure of the lien for said amount and the sale of the property; (2) the payment to the plaintiff, out of the proceeds, of $8,334.25 plus $417.50 costs; and (3) a deficiency judgment against both defendants to the extent that the sale proceeds may be insufficient to make such payment to the plaintiff. Judgment modified on the law and the facts by fixing plaintiff's lien in the amount of $5,357.72, with interest thereon from November 4, 1957; and by directing: (1) the foreclosure of the lien for a sum equal to said amount of $5,357.72 and the interest thereon from November 4, 1957; (2) the payment to the plaintiff, out of the proceeds of the sale of the property, of said sum plus $417.50 costs; and (3) a personal judgment against the defendant Solow Building Corporation for a sum equal to: (a) the amount of any deficiency in the event that the proceeds of the sale should be insufficient to make such payment to the plaintiff, and (b) $1,500 plus interest thereon from November 4, 1957. As so modified, the judgment is affirmed, without costs. The formal conclusions of law are disapproved to the extent that they are inconsistent herewith. The formal findings of fact are modified as follows: (1) by striking out from finding No. 5 the provision that the " defendants did duly agree to pay" the sum of $1,500, and the provision that interest is due thereon from November 20, 1956; (2) by striking out from finding No. 6 the provision that the " defendants did duly agree to pay" the sum of $5,357.72 and the provision that interest thereon is due from February 3, 1957; and (3) by substituting therefor, in each of said findings, a provision that interest is due from November 4, 1957. The following additional findings of fact are made: (a) That under the original contract and under the supplemental contracts for the extra work, upon the completion of his electrical work plaintiff was required to obtain from the City of New York certificates showing approval of his work. (b) That under said contracts plaintiff was entitled to full payment for his electrical work upon his completion of the work. (e) That plaintiff's electrical work under said contracts was completed on November 4, 1957, the date when the city issued its last certificates approving his work. (d) That said contracts were made by the plaintiff with defendant Solow Building Corporation only, and that said corporation only agreed to pay plaintiff the amounts due thereunder. The contracts were made by plaintiff with the defendant Solow Building Corporation only. The balance due under the original contract is $1,500. The amount due under the supplemental contracts for the extra work is $5,357.72. Under the contracts, on the completion of his work plaintiff was required to obtain from the City of New York certificates approving his work, and he was entitled to payment upon the completion of his work. The final certificates of such approval were obtained by the plaintiff and issued by the city on November 4, 1957. This date, we find to be the date on which plaintiff completed his work and performed his obligations under the contracts, and the date on which he was entitled to payment. Interest is due from the date upon which payment can be legally demanded; the cause of action then accrues. Hence, on the sums unpaid under the contracts the plaintiff here is entitled to interest from November 4, 1957, and not from the dates specified in the findings and judgment of the Special Term. Plaintiff was not entitled to file a lien for any sums due him under the original contract. That contract expressly provided that as to the work performed thereunder plaintiff waived his right to file a lien. By virtue of such express waiver plaintiff elected to rely exclusively upon the credit of the contracting party for the payment of the contract price ( Arrow Bldrs. Supply Corp. v. Hartsdale Town House, 11 Misc.2d 746, affd. 7 A.D.2d 755). Plaintiff, therefore, improperly included in his notice of lien the balance of $1,500 due him under the original contract. Such waiver of lien, however, did not extend to the $5,357.72 due for the extra work performed under the supplemental contracts (cf. Lien Law, § 34). Accordingly, the principal amount of the lien is required to be reduced by $1,500. While plaintiff is not entitled to the lien for the $1,500 balance due under the original contract, he is nevertheless entitled to a personal money judgment for said amount against the party with whom he made the contract, namely, Solow Building Corporation (cf. Lien Law, §§ 17, 54, 64; Noce v. Kaufman, 2 N.Y.2d 347, 351-352; Brigham v. Duany, 241 N.Y. 435). Similarly, with respect to any deficiency which may result upon the foreclosure sale, plaintiff is entitled to a personal judgment for such deficiency only against Solow Building Corporation, the contracting party. Settle order on consent or on 10 days' written notice, the order to reflect the changes in the findings here made and the appropriate amounts of interest, computed as here indicated. Nolan, P.J., Beldock, Ughetta, Kleinfeld and Christ, JJ., concur.