Opinion
Argued March 25, 1898
Decided April 19, 1898
Horace Secor, Jr., for Thos. W. Kiley Co. et al., appellants.
Cornelius O'Connor for Thos. W. Kiley Co., appellant.
L. Laflin Kellogg and Alfred C. Pette for respondents.
The judgment of the Special Term established certain mechanics' liens in favor of various lienors, including those of the appellants.
On the 16th day of September, 1892, Dean Westbrook entered into a contract with the counties of Kings and Queens to remove the old bridge and to erect a new bridge over Newtown creek for the sum of $94,850, of which eighty per cent was payable in monthly installments as the work progressed, upon the certificate of the engineer, the balance of twenty per cent being payable thirty days after the completion of the work and the acceptance by the engineer and the bridge committee of the finished structure.
On the 26th day of September thereafter, Dean Westbrook sub-contracted a part of the work to C.A. T. Cregin for the sum of $49,033, payable in installments in like manner and with the same reservations as those embraced in the contract between Dean Westbrook and the counties. The Cregins entered upon the performance of their contract, and continued work upon the structure until the 13th day of April, 1893, at which time they addressed Dean Westbrook the following letter: "Dear Sirs: You are hereby authorized to take charge of work we have been doing under our contract to build bridge at Meeker avenue, Brooklyn, and complete the same for our account. We do not waive, by this provision, our rights under the original contract or any extra work accruing from same. We to receive one-half of the profits accruing on such extra work. Yours truly, C.A. T. Cregin." Thereupon Dean Westbrook finished the work described in the contract. The appellants are lienors, having furnished labor and materials to the Cregins, and, as such, are entitled to maintain their liens and to be paid out of any sum that shall be found to be owing from Dean Westbrook to the Cregins.
At the time of the surrender of the contract by the Cregins to Dean Westbrook, the engineer had given certificates of work performed amounting to the sum of $30,820.80, of which eighty per cent had been paid amounting to $24,656.64; the remaining twenty per cent amounted to $6,164.16. They had also performed work upon the bridge amounting to $3,000 which had not been included in the monthly certificates of the engineer, which sum, with the twenty per cent remaining unpaid, amounted to the sum of $9,164.16. The appellants claim that this sum was due and owing at the time the Cregins surrendered their contract, and that their liens attached thereto and that they are now entitled to be paid out of that fund. The trial court has so held. The General Term, in reversing the judgment, has not stated that the reversal was upon the facts, and we consequently are required to assume that the reversal was upon the law. (Code Civ. Pro. § 1338.) But where a finding has been made without any evidence tending to support it, it is deemed a ruling upon a question of law. (Code Civ. Pro. § 993.) The finding that these sums were due the Cregins at the time of their surrender of the contract cannot be sustained. As to the twenty per cent, amounting to the sum of $6,164.16, it is expressly provided in the written contract that the same shall not be due and payable until thirty days after the completion of the work and the acceptance by the engineer and the bridge committee of the finished structure. As to the other item of $3,000, it was also expressly provided that payments should be made upon monthly estimates based upon quantities estimated by the engineer in charge of the work, and then but eighty per cent became payable upon such estimates. This item had not been included in a monthly statement by the engineer, and, therefore, had not become due and payable. It, therefore, follows that, so far as this finding is concerned, the General Term properly reversed upon the law.
It is now contended that the presumption is that Dean Westbrook completed the contract for the balance of the contract price, and that the $9,164.16 still remains upon which the liens of the appellants' claims attach. Upon the trial, evidence was given on behalf of Dean Westbrook to the effect that the completion of the contract absorbed not only the balance of the contract price, but the $9,164.16, which it is claimed that the Cregins had earned prior to its surrender. Dean Westbrook undoubtedly undertook the completion of the contract for and on account of the Cregins, and if there is any surplus left it, doubtless, should be applied upon the claims of the appellants, but was there any surplus? They say there was not. The trial court says their testimony should not be credited, but no evidence has been submitted tending to show that there was a surplus. We are asked, therefore, to assume that the contract was completed for the balance of the contract price, leaving the $9,164.16 to be applied upon the appellants' claims. We do not believe that we have the right to indulge such a presumption. As we understand the rule, the onus is upon the lienors to show that there is a sum due or to become due on which their liens will attach. We have carefully examined the authorities to which the appellants call attention, and we find none that have any application to the question under consideration. In the case of Van Clief v. Van Vechten ( 130 N.Y. 571, 577) we held that mechanics' liens filed by sub-contractors or materialmen attach to the locus in quo.
"1. If anything is due to the contractor, pursuant to the terms of the contract, when the lien is filed, it attaches to that extent.
"2. If nothing is due to the contractor according to the contract, when the lien is filed, but a certain amount subsequently becomes due thereunder, the lien attaches to the extent of that sum.
"3. If nothing is due to the contractor pursuant to the contract, when the lien is filed and he abandons the undertaking without just cause, but the owner completes the building according to the contract and under a provision thereof permitting it, the lien attaches to the extent of the difference between the cost of completion and the amount unpaid when the lien was filed." VANN, J., in delivering the opinion of the court, says: "The first question presented for decision is whether there was anything due from the owner to the contractor, according to the terms of the contract, when the lien was filed. This depends on whether there is any evidence to support the finding of the referee."
In Beardsley v. Cook ( 143 N.Y. 143) O'BRIEN, J., in delivering the opinion of the court, says: "The plaintiff was bound to show that an amount or portion of the contract price, which the defendant had stipulated to pay for the erection of the houses equal to his claim or to the recovery, still remained in his hands over and above what he had expended to complete them, and which was applicable to the payment of the order." In Leiegne v. Schwarzler (10 Daly, 547, 552) it was held that the complaint must allege the amount due by the owner to the contractor in an action brought to enforce a lien. In Smyth v. Marsich ( 4 App. Div. 171) it was held that the burden rests upon the lienor to show that money was due to the contractor. In Keavey v. De Rago ( 20 Misc. Rep. 105) it was held that the plaintiff must prove that there was an amount due the contractor, and that the lien depends for its validity upon the owner's indebtedness. In Lemieux v. English ( 19 Misc. Rep. 545) it was held that it was necessary to prove not only that the contractor was indebted to the plaintiff but also that there was due and owing to the contractor, or that there thereafter accrued to him from the owner, a sum applicable to the satisfaction of the debt to the plaintiff. And to the same effect are Scerbo v. Smith ( 16 Misc. Rep. 102); Beecher v. Schuback ( 1 App. Div. 359).
The order appealed from should be affirmed and judgment absolute ordered against the appellants, with costs.
All concur.
Order affirmed, etc.