Clonin v. Lippe

Miller, J.: The first -.question involved in this case relates to • the validity of the lien, notice of which was filed, in -New York county on -the 20tli and 23d days of November, 1903. An order Of the County Court of Queens county extending the lien for a period of six -months was granted February 16, 1904, pursuant to section 17 of the Lien Law (Laws of 1897, chap. 418, as amd. by Laws of 1902, chap. 37). It is conceded that the County Court of Queens county had no juris [467] diction to make the order. The lien, therefore, expired by virtue of the provisions of said section 17, but the respondents contend that as the undertaking .provided by subdivision 5 of section 20 .of the Lien Law was given on the 10th day of December, 1903, the action may be maintained against the contractor and his sureties without regard to the three months’ limitation-specified in said section, 17. This contention is based on Hafker v. Henry (5 App. Div. 258) and Mertz v. Press (99 id. 443, 450). It is unnecessary to discuss those authorities because the. present Lien Law is essentially different from the statute which was considered in those cases. Section 20 of the Lien Law (as amd. by Laws of 1902, chap. 37) provides how the lien may be discharged; the last sentence of subdivision 4 thereof providing for discharge by deposit of a sum'of money is as follows“ The amount so deposited shall remain with the comptroller or such financial officer ór other officer or person until the lien is discharged as prescribed in subdivision one, two or three of this section.” Subdivision 2 relates to discharge by lapse of time,'i. e., the three months’period specified in section 17, and subdivision 5 prescribes that the undertaking therein provided for shall be “ conditioned for the payment of any judgment which may be recovered in an action to enforce the lien.” In the case of Mertz v. Press (supra), relied upon by the respondents, the short Statute of Limitations was held inapplicable to= an action on the undertaking because of the analogy between tile undertaking to discharge the lien .and the deposit of money to discharge the lien. By the same reasoning the short statute now applies to ah action on the undertaking because of the express provision quoted supra respecting the discharge of the lien by deposit. Moreover, as the undertaking is conditioned for the payment of any judgment which may be recovered in'an action to enforce the lien, it is difficult to see how an action can be maintained on it after the lien has expired. While the lien upon the property is discharged by the deposit of money or the giving of an undertaking, it is plain that said deposit or undertaking is but a substitute for the property, and the language of section 17 is that the lien “ shall not continue for a longer period than three months * *• * . unless,” etc. The only question remaining to be determined is whether the plaintiffs were entitled to judgment against the defendants Herman F. Lippe and Henry J. Lippe, Jr., the contractors, pursuant to sec [468] tion 3412 of the Code of Civil Procedure. The complaint is upon a written contract > set forth in lime verba, and so far as material here it was an agreement on the part of the plaintiffs to deliver to the defendants 342,000 hard brick at $5.90 per 1,00.0.. The brick were not all delivered, but the balance due on the amount delivered according to the •contract, price was $112.50. The plaintiffs, however, sought to recover the sum of $127.58 for delivering 150,100 bricks by truck load instead of by barge, it being claimed, that there was an extra cost of 85 cents per 1,000 occasioned by the fact that the defendants obstructed the place where the bricks were to be piled so that the plaintiffs were unable to deliver in large, lots. The testimony as to this extra cost was objected to as not within the issues, bio attempt, was made to amend the pleadings. It needs nó discussion to show that under a complaint to recover a contract price stated, the plaintiffs could not recover ah additional sum on a supplemental contract not-pleaded, or by way of damages, for breach of contract. The testimony, respecting the obstruction of the place Avhere the bricks were to be piled may have excused further performance on the plaintiffs’ part; it may furnish a complete answer toThe counterclaim! set up by the defendants for breach of contract; but it furnished no basis for an- aAvard of damages on a complaint seeking solely to recover a stated contract price. The pleadings and findings are sufficient to support a judgment against the deféndants Herman F. Lippe and Henry J. Lippe, Jr., for the sum of $112.50. The judgment as to them should be reversed unless the plaintiffs stipulate to reduce it to the sum of $112.50. As to the other defendants the judgment should be reversed and. the complaint dismissed. Hirschberg, P. J., Woodward, Jenks and High, JJ., concurred. Judgment against the defendants Herman F. Lippe and Henry J. Lip.pe, Jr., reversed and new trial ordered, costs to abide the event, unless within twenty days -plaintiffs stipulate to reduce the recovery to the sum of .$112.50, in which event the judgment as reduced is affirmed, without costs of this appeal. Judgment against the defendants Henry J. Lippe and Joseph F. Lippe reversed', with costs,, and complaint dismissed, with costs.