Berry v. Gavin

BRADLEY, J. The purpose of the action was the foreclosure of an alleged lien, and for other relief, founded upon a claim for labor and materials and a notice of lien filed in the Erie county clerk’s office. It appears that Stephen R Berry, husband of the plaintiff, made with the defendant Lobee the contract which was made to perform the work of repairing the building upon the premises in question. It does not appear that any formal decision was made by the county court; but in a brief memorandum of the judge the chief ground indicated for the result is that it did not appear that the wife had such relation to the claim as was necessary to enable her to prosecute the action as plaintiff. The evidence, however, was such as to fairly require the conclusion that, as between the husband and the plaintiff, he made the contract, and caused the work to be done as her agent, pursuant to a written agreement and power of attorney. He appeared as a witness in her behalf on the trial. The fact that he did not disclose his agency or the name of his principal has, so far as appears, no importance in the present case. Ludwig v. Gillispee, 105 N. Y. 653, 11 N. E. 835. The defendants, however, cannot be prejudiced in their legal rights as against the husband arising out of his apparent relation to the contract and the work performed, but they are available in the action brought by the plaintiff as the principal. The contention of the defendants’ counsel that the cause of action as alleged in the complaint is not founded upon the notice of lien which was filed is not supported. The notice of lien is fully set forth in the complaint by a copy annexed. If there were any matters alleged in the complaint not consistent with or permitted by the notice of lien, they appeared on the face of the pleading. There was no such variance between the allegations in the complaint and the notice of lien as to deny to the plaintiff the benefit of the latter in the action if the facts proved supported the claim founded upon it. The contract to do the work was made in June, 1893. At that time the defendants Bart Lobee and Daniel Gavin were in possession of the premises, having the equitable title to them as vendees in a contract of date Hay 1, 1893, made with them by Austin R. Preston as vendor. He, by deed of date 506 July 1,1893, conveyed the premises to the defendants Daniel Gavin and Sarah A. Gavin (his wife). This was evidently done with the consent of Lobee. In making the agreement with Berry, Lobee acted for himself and Gavin, and they, with the wife of the latter, were cognizant of the performance of the work as it progressed. The notice of lien was filed November 15, 1893, and in it the defendants Daniel Gavin and Lobee were named as the owners and persons in interest. The incorrectness of that statement did not vitiate the notice, or defeat the plaintiff’s lien. Laws 1885, c. 342, § 4. The work seems to have been performed with the consent of the defendant Sarah A. Gavin as well as of the other defendants, which was sufficient to bring her interest within the operation of the lien. Id. § 1; Schmalz v. Mead, 125 N. Y. 188, 26 N. E. 251; Pell v. Baur, 133 N. Y. 377, 31 N. E. 224. It is now urged on the part of the defendants that the notice of lien was not filed within 90 days after the performance of the work, as required by the statute (Laws 1885, c. 342, § 4). No such question seems to have been raised upon the trial, nor is it suggested in the memorandum of the county judge. There is, however, some evidence tending to prove that the work was finally completed within that time. The complaint was dismissed at the close of the plaintiff’s evidence. The facts which that tended to prove were sufficient to put the defendants upon their defense. We do not consider the questions which may finally arise upon the merits. The judgment should be reversed, and a new trial granted, coste to abide the event. All concur.