Schmohl v. O'Brien

Giegerich, J. This was a subcontractor’s action to foreclose a mechanic’s lien, and the trial resulted in favor of the defendant owner, the court having found that nothing was due the principal contractors who were in default of the contract, and that the owner had expended the full contract price, by payment to the contractors or by meeting the expense of completing the work after the contractors had abandoned it. The contract provided for the owner’s completion upon the contractor’s default; therefore the subcontractor’s lien would attach to any balance remaining in the owner’s hands, over the contract price after deducting the cost of the completion (Van Clief v. Van Vechten, 130 N. Y. 571, 577; Campbell v. Coon, 149 id. [700] 556; Friendship Mfg. Co. v. Rohrig, 16 App. Div. 633), and the plaintiff assails the finding that there was no balance and claims that the evidence fails to support the fact in a substantial degree. The exception taken to the finding of fact that the defendant owner had expended the whole of the contract price, would present error of law if the evidence were insufficient to support the finding prima facie (Morowsky v. Rohrig, 4 Misc. Rep. 167, and citations), and our examination of the record discloses that there was no evidence to sustain certain credits made to the owner in the course of the decision, with the result that the finding is to be declared unfounded, there being, beyond question, a balance in the hands of the defendant owner applicable to the plaintiff’s lien. The amount payable to the contractors, had they completed, was $751.50, and the payments claimed to have been made by the owner, under the contract and in the course of his own completion of the work, was $760.84, according to an abstract from the record submitted on the argument, but the evidence shows that at least three items, going to make up this last sum, were not allowable. One item of $5, for ceiling work, while adverted to by counsel for the defendant O’Brien in the course of his client’s direct examination was not proven, as, in fact, an expense, by any.statement of the witness. A further item of $6.50 for lumber (Exhibit 7) was clearly embodied in the general lumber bill (Exhibit 5), and thus was credited to defendant twice over. So, too, of the item of $11; 50 for plastering, since the amount was made the basis of a credit to defendant upon payment to the plasterer at the contractor’s order (Exhibit O), and once again because the amount thus paid was included in the latter’s receipt (Exhibit H). We also find the proof to be very unsatisfactory as to the owner’s alleged payment of $100 to the carpenter Goldberg, since it would certainly seem, from the owner’s, O’Brien’s, testimony, that'he had credited himself with this same sum as paid to one of the contractors, Walter Powers. His testimony as to this was self-contradictory, and 'could well have called for disapproval by the General Term as proof of the particular facts sought to be supported, but we are not inclined to place our reversal of the judgment upon the failure of proof touching this item, since it may be that some evidence for its support is found in this witness’ testimony, given at one stage of the trial, that the payments to Goldberg and to said Walter Powers were distinct. In any event, the finding as to the state of the fund in the owner’s hands should have been in [701] the plaintiff’s favor, for some amount, as we have shown, and the •finding which was made was without evidence for its support; hence there was substantial error of law. The judgment should, therefore, be reversed and a new trial ordered, with costs to the appellant to abide the event. Beekman, P. J., and Gildersleeve, J., concur. Judgment reversed and new trial ordered, with costs to appellant to abide event.