Byron v. Mayor

Lawrence, J. — In this case 1 am of opinion that the evidence establishes that the plaintiff furnished materials, amounting in value to the sum of $465.29, which were actually used in and about the work referred to in the complaint. In arriving at this amount I have allowed thirty-six dollars as the value of the blue stone used in the performance of the work. From the aforesaid sum of $465.29 there should be deducted the sum of ninety-three dollars, the amount paid by the defendants Freel and McHamee to the plaintiff, leaving [458] an unpaid balance of $372.29. For this amount the plaintiff has a lien which he can enforce against the fund in the hands of the city, under the provisions of chapter 315 of the Laws of 1878. I am also of the opinion that the evidence establishes that the defendants Freel and McbTamee were indebted to the plaintiff, at the time of the commencement of this action, in the sum of $832.29, for which amount the plaintiff is entitled to a personal judgment against them under the sixth section of the act aforesaid. The evidence as to the sale and delivery of the blue stone is conflicting, and I do not feel warranted in holding that the plaintiff has established such sale or delivery to any greater extent than as to the small portion of the stone which was actually used in the work, and which was, as has been before stated, amounted to the sum of thirty-six dollars. The case of .Burroughs agt. Thompson, which is cited by the learned counsel for the defendants, does not appear to me to be an authority against the power of the court, under the act of 1878, to render a personal judgment against the original debtor for the amount due from him, in excess of the amount for which a lien has been established. The sixth section of the act seems to contemplate a complete settlement of the controversy between the materialman and his debtor in one action. The case above referred to in the court of appeals proceeded from the theory that as the materialman had failed to show that there was anything due from the owner of the land to the first contractor, no lien whatever was established, and, therefore, the action could not be maintained for the purpose of rendering a personal judgment against the contractor. Here the lien is established to a certain amount, and it would appear that in such a case a personal judgment can be rendered in favor of the plaintiff against the contractor for the full amount due from him (Hubbell agt. Schreyr, 14 Abbott [N. S.], 286). Judgment accordingly. Findings may be settled on two days’ notice.