Spring v. Collins Building & Construction Co.

Amend, J, Action to foreclose a mechanic’s lien. The notice states that the plaintiff has and claims a lien " for the [240] principal and interest of the value and agreed price of the labor performed and to be performed,” and that “ the labor performed and to be performed is carpenter work and floor laying, and the agreed price and value thereof is thirty-seven hundred dollars.” At the close of the plaintiff’s case the defendants moved to dismiss upon the ground that the lien was invalid, and demanded that the remaining issues be tried by jury. The lien must be held to be invalid for the reason that the value or. the agreed price of the labor performed is neither stated nor can it be inferred from a reading of the notice. Finn v. Smith, 186 N. Y. 465. Section 3412 of the Code of Civil Procedure, however, provides that if the lienor should fail for any reason to establish a valid lien he might recover judgment for such sums as were due him, or which he might recover in an action upon a contract, against any party to the action. It has been held that under this section of the Code the lienor is entitled to a personal judgment if he establishes his cause of action, notwithstanding that he may fail to establish a valid lien. Bradley & Currier Co. v. Pacheteau, 175 N. Y. 492. The defendants’ demand for a trial of the remaining issues by a jury was made too late. While it seems that they had such a right (Howkins v. Mapes-Reeves Const. Co., 82 App. Div. 72-78), nevertheless they waived it by failing to make their demand therefor before any evidence was produced. Code Civ. Proc., § 1009; Kenney v. Apgar, 93 N. Y. 540, 550; Marshall v. De Cordova, 26 App. Div. 615, 620. People v. Albany & Susquehanna R. R. Co., 57 N. Y. 161, is distinguishable from the case at bar. In that case the defendant, like the defendants here, made his demand for a jury trial at the close of the plaintiff’s case, and it was held that he did not waive his right to such a trial by deferring his demand until that time. But the court in that case placed its decision upon the ground that the only manner in which a jury trial could be waived was that expressed in section 266 of the old Code of Civil Procedure, which provided that it might be done by failing to appear upon the trial, by written consent filed with the clerk, or by oral consent in open court entered in the minutes. No other method was provided for the waiver of such a right. Section 1009 of the [241] Code of Civil Procedure contains an additional provision, viz., that such right may be waived by failure to make a demand therefor before the production of any evidence. In Kennedy v. Apgar, supra, the demand for a trial by jury was made after the examination of a witness was commenced hut before the plaintiff rested his case. The trial court held that the demand was made too late, and the Court of Appeals said that the trial court’s denial of the defendant’s demand could he upheld upon that ground. The facts are resolved in favor of the plaintiff. He was refused permission to complete the work and is entitled to judgment against the defendant The Collins Building and Construction Company, for the value of the work actually performed, which I find to he $1,209.50. Judgment accordingly, with interest.