Ogden v. Alexander

Hardin, P. J. 1. Upon the evidence given before the referee he was not able to determine the exact amount which had been paid prior to the filing of the notice of lien by Alexander to Hill, or to others for him; but the referee did find, viz.: “That the amount remaining unpaid at that time was sufficient to pay for the labor and material required to complete the contract, including the sum of $75 toward the mantle, and also to pay the amount unpaid on the plaintiff’s claim; August 19, 1889, and stated in finding seventeenth at the sum of $507.45.” After a careful consideration of the evidence, we are of the opinion that the findings should be sustained. 2. We are of the opinion that the plaintiff was authorized to file the lien against the property, notwithstanding what had transpired between him and Oliver. In section 1 of chapter 342 of the Laws of 1885 it is provided: “Any person or persons, firm or firms, corporation or association, who shall hereafter perform any labor or service, or furnish any materials which have been used or which are to be used in erecting, altering, or repairing any house, * * * may, upon filing the notice of lien prescribed in the fourth section of this act, have a lien for the principal and interest of the price and value of such labor.” According to the literal language of the section from which we have quoted, the plaintiff was at all times after the performance of the work and delivery of the materials entitled to the benefit of the provision of the statute. He has done nothing to forfeit his right to file a lien. But it is contended by the appellants, because he became a purchaser of the interest of Oliver in the assets, that a right to file alien was not available; and they rely upon the general principle that liens given by a statute in general are “a personal right given to the mechanic, material-man, and laborer for his own protection;” and they call our attention to Rollin v. Cross, 45 N. Y. 767, where the general rule was asserted. In the course of the opinion in that case it was intimated that, where “the assignment is made for the benefit of the assignor, and to be held as his agent, so that the lien may be preserved,” is an exception to the general rule. That opinion refers to the opinion of Lord Ellenborough, (McCombie v. Davies, 7 East, 5.) where it was suggested that the general rule did not apply “to the case of one who, intending Ao give a security to another to the extent of his lien, delivers over the actual 643 possession of goods on which he has the lien to that other, with notice of his* lien, and appoints that other as his servant to keep possession of the goods for him; in which case he might preserve the lien.” The same doctrine was approved in Urquhart v. McIver, 4 Johns. 111; and in the latter case Judge Kent observes: “A factor may deliver the possession of goods on which he has a lien to a third person, with notice of the lien, and with a declaration that the transfer is to such person as agent of the factor, and for his benefit. This is a continuance, in effect, of the factor’s possession,” etc. When the plaintiff acquired the interest of his retiring partner, and added that interest to his own interest, in the materials furnished, and in the contract to supply materials and services to Hill, it may be assumed that he did not intend to relinquish any rights which he theretofore possessed, or to release the firm’s interest in the materials furnished, or services rendered, the contract being uncompleted and unperformed; and when he assumed to carry out the contract made by the firm, it is not too much to assume that he became the “agent” or “servant” of the firm. The statute before us, in its twenty-fifth section, is declared to be remedial, and it is provided that it “is to be construed liberally to secure the beneficial interests and purposes thereof; and a substantial compliance with its several provisions shall be sufficient for the validity of the lien or liens hereinbefore provided for, and to give jurisdiction to the courts to enforce the same.” We are of the opinion that the plaintiff was entitled to file notice of his lien, and to have the same enforced pursuant to the provisions of the statute. 3. Other questions are presented by the learned counsel for the appellants, but we think they are satisfactorily disposed of for the reasons stated in the opinion of the learned referee. Judgment affirmed, with costs. All concur.