Opinion
December 20, 1961
In an action to foreclose a mechanic's lien upon certain real property, in which the lien was discharged by the filing of a bond, and in which the defendant Kesdeit Realty Corp. asserted a counterclaim by reason of plaintiff's defective performance, by reason of plaintiff's breach of its agreement not to file a lien and by reason of its exaggeration of the lien, three defendants, Kesdeit Realty Corp., Deitkess Building Corp. and Hartford Accident Indemnity Company, appeal from a judgment of the Supreme Court, Nassau County, entered January 26, 1961 upon the decision of a Special Referee after trial before him, which declared that the plaintiff by the filing of its notice of lien acquired a valid lien for $2,890.32, with costs; which directed the foreclosure and sale, in form only, of the property; which awarded a personal judgment for $4,048.42 in plaintiff's favor against said three defendants; and which dismissed the counterclaim on the merits. Judgment modified on the law and the facts as follows: (1) by striking out the first, second, third, fifth and seventh decretal paragraphs which decree that plaintiff has a valid lien and direct its foreclosure and the sale of the property; (2) by striking out the sixth decretal paragraph which directs judgment against the three named defendants (the appellants) for a total sum of $4,048.32, consisting of: $2,890.32 as the balance unpaid for the extra work performed; $777 as the interest thereon from August 3, 1956 to the date of entry of the judgment; and $381.10 costs as taxed; (3) by substituting, in lieu of said sixth decretal paragraph, a paragraph directing judgment against defendants Kesdeit Realty Corp. and Deitkess Building Corp. only, for the sum of $1,908.03, with interest thereon of $511.97 from August 3, 1956 to January 26, 1961 (the date of entry of the judgment), making a total of $2,420; and directing that plaintiff have execution therefor against such defendants; (4) by adding a decretal paragraph directing that the complaint as against the defendant Hartford Accident Indemnity Company be dismissed, without costs; and (5) by adding a decretal paragraph directing that no costs be allowed to any party to the action. As thus modified, the judgment is affirmed, without costs. Findings of fact insofar as they may be inconsistent herewith are reversed, and new findings are made as indicated herein. The written agreement, which is merely part of the entire agreement, and the undisputed testimony of the parties, show that a separate contract was made for each job or house in this building project. The evidence is insufficient to prove that a notice of lien was filed within four months after completion of any one contract or within four months after the last item of labor or materials was furnished thereunder; hence, plaintiff failed to establish the validity of the notice of lien (cf. Lien Law, § 10). The proof establishes that work was done on the job known as the barn and on the house known as job number 3, and that payment therefor was not made. Although plaintiff failed to establish a lien in respect of any work, it is entitled to personal judgment against defendants Kesdeit and Deitkess for the work which the proof shows to have been done in respect of the barn and job number 3. The Referee, however, inadvertently omitted to credit said defendants with $982.29, which he found to be an overpayment on the basic contract prices. The action being to foreclose a mechanic's lien, but in form only, so as to satisfy the conditions stated in the bond filed to discharge the lien, and a lien not having been established, plaintiff is not entitled to judgment against the bonding company, defendant Hartford Accident Indemnity Company. Nolan, P.J., Beldock, Ughetta, Pette and Brennan, JJ., concur.