Слике страница
PDF
ePub

effect as against the lien of the subcontractor, not to make advance payments to the contractor, though he had promised the subcontractor to look out for him, for the mere failure of the owner so to do was not proof that he was guilty of a fraud in making advance payments to the contractor.

[Ed. Note. For other cases, see Mechanics' Liens, Cent. Dig. §§ 150159; Dec. Dig. § 115.*]

-

3. MECHANICS' LIENS (§ 115*) -ENFORCEMENT LIABILITY OF OWNER FOR ADVANCE PAYMENTS-MODIFICATION OF CONTRACT.

A contract to construct a building and a sidewalk required that the work should be done in July. The owner extended the terms of payment to December 1st following, and agreed to pay the contractor the balance due on his delivering a receipt from the subcontractor showing that the latter's claim had been paid. The contractor completed the building and exhibited to the owner a letter, purporting to be written by the subcontractor, offering to settle his claim for a specified sum and notes indorsed. The owner, assuming that the matter would be so settled, made a settlement with the contractor by advancing to him the amount due on the contract, save a specified sum reserved for the construction of the sidewalk when suitable weather should permit. The owner had previously promised the subcontractor to look out for him, but he failed to do so. Held, that the subcontractor, thereafter filing a notice of lien, could not enforce it, notwithstanding Lien Law (Consol. Laws 1909, с. 33) § 7, providing that any advance payment to a contractor to avoid the law shall be of no effect as against the lien of a subcontractor.

[Ed. Note. For other cases, see Mechanics' Liens, Cent. Dig. §§ 150159; Dec. Dig. § 115.*]

Appeal from Queens County Court.

Action by William J. Wagner against C. Leroy Butler and others. From a judgment for plaintiff, certain of the defendants appeal. Reversed, and judgment entered dismissing the complaint.

Argued before JENKS, P. J., and THOMAS, CARR, WOODWARD, and RICH, JJ.

John L. Lindsay, of Flushing, for appellants.

Easton S. Bacon, of New York City, for respondent.

THOMAS, J. The action by a subcontractor is to foreclose a mechanic's lien, notice whereof was filed on February 27, 1911. But, on the previous January and February 17th, the owner had paid the contractor two sums, aggregating $450, and the obligation of the contract released, although $125 was reserved by the owner to meet the expense of laying the sidewalk when suitable weather should permit it to be done.

[1] But the plaintiff invokes section 7 of the Lien Law, and asserts that the payments were ineffective to avoid his lien, inasmuch as they were not payable until the completion of the work, and hence not until the sidewalk should be laid. To sustain this contention, the plaintiff must prove that the payments were accelerated "for the purpose of avoiding the provisions of" the Lien Law. To maintain that issue the plaintiff proved the owner's knowledge of the lien before the payment. Indeed, such knowledge was deemed sufficient evidence of purpose to avoid the lien in Wolf v. Mendelsohn, 87 N. Y. Supp. 465, and in Behrer v. McMillan, 114 App. Div. 450, 100 N. Y. Supp. 35, affirmed 191 N. Y. 530, 84 N. E. 1108, although the lien in the last case was not sustained. This would construe the section to read that advance payments made with knowledge of a subcontractor's unpaid claim are ineffective against a notice of lien subsequently and duly filed. Such holding disregards the purpose or intention with which the payments are made, while the statute has sole regard to that. It was not intended to disable the owner from modifying or terminating his contract, or facilitating his work by payment earlier than the contract stipulated. In the present case the building was ready for use. The sidewalk must await a season that permitted its construction. Should the contractor be compelled to await the payment for work асtually done until the season would permit this relatively slight thing to be done? That would mean disability to modify a contract, at which the statute was not aimed.

*For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

[2] But it is urged that the owner knew that the contractor was not paying its men, that it was irresponsible in that regard, that it had not paid the balance due the plaintiff, and that the latter had given the owner notice of the fact that he must look out for him, and that the owner had promised to attend to it. There is no evidence that the plaintiff was deterred by such assurance from filing his notice. The work was finished in November. The lien was not filed until February 27th thereafter. The substance of plaintiff's argument is that, where the owner knows that the contractor is in default in his payments for labor and material contributed by others to the building, he must see to it that the default is met before he makes advance payments to the contractor. There is no such obligation at common law, and the statute does not contemplate it. It would make the owner the supervisor of the affairs of the contractor, necessitate an accurate knowledge of his affairs, and constitute him a trustee for the materialmen before they made him such by filing liens. But it is superadded that the defendants promised to attend to it. That would not make him liable at law. No action for fraud could rest on such promise of future action. The failure to attend to it is not evidence that the owner paid the contractor to escape attending to it.

[3] The fact is that the work was not done in July, 1910, as agreed, and the owner in writing extended the terms of payment to December 1, 1910, and agreed to pay him the balance due, "provided, however, he delivers to me a receipt from one William J. Wagner" (plaintiff), "a subcontractor on the Forrest avenue house, showing that his entire claim for labor and material furnished on said house has been paid." The plaintiff was not privy to his agreement. When the money was finally paid, and the relations of the contractor and owner to the building contract ended, the contractor showed the owner a letter, purporting to be written by the plaintiff to the contractor, offering to settle his claim for a sum named and notes indorsed. The owner, assuming that the matter would be met in that way, settled with the contractor. It may have been done inconsiderately, and without proper regard for his promise to attend to it; but that does not show that it was fraudulently done. The plaintiff's claim that the work was not done when the payment was made reaches too far. The contractor

never finished the work. Hence, if the modified agreement be in contravention of plaintiff's rights, the contract was never performed, and plaintiff cannot recover. But the work was finished because the owner agreed to finish it, and there was no fraud shown in the arrangement that he made.

The judgment should be reversed, and judgment should be entered dismissing the complaint, with costs. All concur.

(155 App. Div. 375.)

MOORE v. STANDARD OIL CO. OF NEW YORK.

(Supreme Court, Appellate Division, Second Department. February 14, 1913.) 1. MASTER AND SERVANT (§ 264*) - INJURIES TO SERVANT-EVIDENCE-ADMIS

SIBILITY.

Where the negligence charged was the master's failure to instruct plaintiff and to provide a necessary guard on a machine, evidence of negligence in failing to equip the machine with a stopping device was inadmissible.

[Ed. Note. For other cases, see Master and Servant, Cent. Dig. §§ 861876; Dec. Dig. § 264.*]

2. APPEAL AND ERROR (§ 263*) -PRESENTATION OF GROUNDS OF REVIEW IN COURT BELOW-EXCEPTIONS NECESSITY.

Upon appeal from an order denying a motion for new trial, objections to the admission of evidence may be reviewed, though no exceptions to the charge submitting the liability predicated on such evidence were reserved.

[Ed. Note. For other cases, see Appeal and Error, Cent. Dig. §§ 15161523, 1525-1532; Dec. Dig. § 263.*]

3. WITNESSES (§ 269*) -CROSS-EXAMINATION-WHAT IS.

Evidence elicited by plaintiff upon the cross-examination of a defend ant's witness must be considered as affirmative evidence offered by plaintiff, where the witness had not testified in chief upon the matters covered by the evidence.

[Ed. Note. For other cases, see Witnesses, Cent. Dig. §§ 949-954; Dec. Dig. § 269.*]

4. TRIALS (§ 232*)-INSTRUCTION.

In a personal injury action against a corporation, an instruction telling the jury that their action could not be reviewed was improper, in tempting them to disregard the evidence and find for the plaintiff.

[Ed. Note. For other cases, see Trial, Cent. Dig. §§ 524, 525; Dec. Dig. § 232.*]

Appeal from Trial Term, Kings County.

Action by John Moore, an infant, by Sarah Rofling, his guardian ad litem, against the Standard Oil Company of New York. From a judgment for plaintiff, and an order denying defendant's motion for new trial, defendant appeals. Reversed and remanded.

Argued before JENKS, P. J., and HIRSCHBERG, BURR, THOMAS, and CARR, JJ.

Dean Emery, of New York City (Vine H. Smith, of New York City, on the brief), for appellant.

Henry M. Dater, of Brooklyn (George F. Elliott and Jay S. Jones, both of Brooklyn, on the brief), for respondent.

*For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

CARR, J. This is an appeal from a judgment entered on the verdict of a jury in favor of the plaintiff for the sum of $3,000, and taxed costs, as well as from an order denying a motion for a new trial under section 999 of the Code of Civil Procedure. The plaintiff was a young lad something over 14 years of age, and was an employé of the defendant in one of its factories in the borough of Brooklyn. While he was at work soldering handles to the tops of tin cans, which were designed for holding illuminating oil, the index finger of his left hand was caught in the moving mechanism of the soldering machine, and he lost the tip of that finger. The negligence charged against the defendant is set forth in paragraphs 2, 3 and 4 of the complaint, as follows:

"2. That it was the duty of the said defendant to provide safe and suitable machinery for plaintiff's use in his said employment and to properly protect the same, and it was also the duty of said defendant to instruct the plaintiff herein as to the proper manner in which to do his work, because of his tender age.

"3. That it was the duty of said defendant to provide a safe and proper screen or guard on said machine, which screen or guard was usual on machinery of this character and necessary in order that the same could be operated safely.

"4. That said defendant, wholly disregarding its duty, negligently and carelessly permitted plaintiff herein to engage in work on said machine without informing him that said work was in any wise dangerous, and in failing to instruct plaintiff as to the proper manner in which to do the said work, and, not regarding its duty as aforesaid, it negligently and carelessly failed to provide a safe and secure covering screen or guard for said apparatus and machine as aforesaid."

[1] When the action came to trial, the plaintiff, over the objection and exception of the defendant, was permitted to give proof as to negligence of the defendant in failing to have upon the machine in question a stopping device, by which any operator on the machine could immediately stop the moving mechanism. A number of photographs were introduced in evidence, and are before us on this appeal, and likewise part of the mechanism of the soldering machine. From these photographs it is apparent that a number of boys usually work together at the same time at the machine. The appellant contends that the admission of testimony as to the absence of a stopping device was improper, in that the plaintiff had specifically pleaded his claims of negligence of the defendant in his complaint, and he should have been confined thereto in his proofs. No proof was offered to show that the machine was out of order in any way, and the claim that it should have been guarded by a screen was abandoned during the course of the trial. I think this objection is well taken, especially as the trial court, in submitting the question of negligence on the part of the defendant to the jury, presented to it the question as to whether the master had discharged its duty to the plaintiff in failing to provide a proper stopping device for the machine.

[2] It is argued, however, that the defendant has waived this exception by introducing proof to meet that offered by the plaintiff on this point, and likewise by failing to except to that portion of the charge which submitted this particular question to the jury for consideration. No authorities are cited to sustain this proposition, except some which relate generally to evidence admitted without objection and exception on the part of the defendant. If an exception to the charge were necessary also, its absence would not preclude us from considering the question on this appeal, because such question may be reviewed by this court on the appeal from the order denying the motion for a new trial. It is not necessary to cite any authorities on this proposition.

[3] There are some further objections made by the appellant, among others as to the admission of proof on the part of the plaintiff that there had been prior accidents on this machine, without proving the circumstances of such accidents. This proof came in, over objection and exception by the defendant, on the cross-examination of the defendant's witness Carr; but, so far as this proof went, it was not proper cross-examination, as Carr had given on his direct examination no testimony whatever on this point. The proof, therefore, must be considered as affirmative evidence offered by the plaintiff, though elicited on cross-examination of the defendant's witness. The trial developed an atmosphere of its own, which was by no means favorable to the defendant, as witnessed by the record, where the plaintiff was allowed to ask the defendant's foreman, over objection and exception, whether the machine in question was not generally known in the factory as the "finger-cutting machine."

[4] The charge of the learned trial court itself by inadvertence no doubt, was in one particular injudicious, as will be seen from the following language:

"It is for that reason that you 12 men have been called here as judges of the facts, and to pass upon the facts. You are the exclusive judges of the facts in this case. Your action cannot be reviewed. Any mistakes I make in my statement of the law to you may be reviewed, but not your action; so that you occupy a very high and honorable position in this court."

Such a statement might prove little less than a strong temptation to a jury of average men in a case where on one side was the Standard Oil Company and on the other a poor lad with a maimed finger.

The judgment and order should be reversed, and a new trial granted; costs to abide the event. All concur.

(155 App. Div. 97.)

DAVIDS et al. v. BAUER.

(Supreme Court, Appellate Division, First Department. February 7, 1913.) 1. CORPORATIONS (§ 351*)-REPRESENTATIVE ACTION BY CREDITOR-LIABIL

ITIES.

A creditor of a corporation, who sues on his own behalf and on behalf of all other creditors similarly situated who come in and contribute to the expense of the action to enforce the personal liability of directors, is not a trustee for the other creditors not coming in, and he assumes to prosecute on behalf of the other creditors only so far as his personal interests require.

[Ed. Note. For other cases, see Corporations, Cent. Dig. §§ 1492, 1493; Dec. Dig. § 351.*]

*For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

« ПретходнаНастави »