Opinion
May Term, 1903.
William F. Kimber, for the appellant Burke.
Paul M. Goodrich, for the appellant surety company.
S.S. Myers, for the respondent.
The defendant Burke entered into a contract with the city of New York for the erection of a public school building, and thereafter sublet a portion of such contract to William M. Dean Co. The work to be performed and the materials to be furnished by William M. Dean Co. were stated in a letter to Burke as follows: "We will make and deliver to School No. 175, Borough of Bronx, the platform and desk and all cabinet work in connection therewith for $925. This price includes the filling with best quality of Wheeler's or other approved best wood filler. * * *" This proposition was accepted by Burke in a letter in which he stated: "I accept your proposal of the 23rd inst. to furnish the platform and desk for P.S. No. 175, 184th Street and Jerome Avenue, Borough Bronx, for the sum of $925, including the painting." Dean Co. did certain work and furnished certain materials. Subsequently it was adjudged a bankrupt and one Fenwick B. Small appointed its trustee. Burke having neglected to pay Small as such trustee, he filed a notice of lien, which was released by Burke giving an undertaking, with the National Surety Company as surety, and this action was brought to foreclose the lien. Small had a judgment against Burke, the National Surety Company and the city of New York for the amount claimed, together with interest thereon, which, with the costs in the action, amounted to $1,223.73, from which the surety company and Burke have appealed.
It is urged that there could not be a recovery in any event in excess of $850, and this contention is based upon the wording of the notice of lien filed, which is as follows: "The amount claimed is the sum of 925 dollars and due to claimant on the 12th day of June, 1901, * * * which is the amount of claimant's demand after deducting all just credits and offsets, except the sum of $75." In other words, what is claimed is that the $75 here mentioned should be deducted from the $925. The trial court held otherwise, and in this we think he erred. The amount claimed is $925 "except the sum of $75," and if any meaning whatever is to be accorded to the words quoted then, clearly, $75 is to be deducted.
It is also claimed that Dean Co. did not complete its contract, in that it did not furnish a music board, two pair of oak doors and two transom sashes over the doors, and one or two other small items, which it is claimed were called for by the contract under the agreement to furnish the platform and desk and "all cabinet work in connection therewith;" in other words, that the doors, music board, etc., were included in the phrase just quoted.
We cannot agree to this contention. The doors referred to led from the assembly room in which the platform and desk were placed into the corridor or hall adjoining and the transom frames were to be placed over these doors. The music board was entirely separate and distinct from the platform and desk, as were the other items which it was claimed Dean Co. should have furnished. The words "all cabinet work in connection therewith" referred to the platform and desk and not to anything else. This was the conclusion reached by the trial court, and a fair construction of the contract itself justifies the conclusion. Dean Co. having performed its part of the contract could have filed a notice of lien upon the amount due to Burke from the city, and when a trustee in bankruptcy was appointed, he, by operation of law, occupied precisely the same position that it would have occupied had it not been adjudged a bankrupt. The trustee was the representative of Dean Co. for every purpose, so far as the contract was concerned and an enforcement of any claim that might be made under it. He had just as much right to file a notice of lien and enforce it as Dean Co. would have had if a trustee had not been appointed. The statute under which the lien was filed provides that it shall be construed liberally to secure the beneficial interests and purposes of it. (Laws of 1897, chap. 418, § 22.) A substantial compliance with its several provisions is sufficient for the validity of a lien and to give jurisdiction to the courts to enforce it. ( Davis v. City of New York, 75 App. Div. 518; McDonald v. Mayor, 170 N.Y. 409. ) In the Davis case this precise point was passed upon, and in the McDonald case, under a statute (Laws of 1882, chap. 410, § 1825) which provided that a claimant might, under certain conditions, acquire a lien by filing a notice and verifying the same by "his oath or affirmation" it was held that it was a sufficient compliance under the statute that the notice was verified by an agent.
It is also suggested by the surety company that the judgment, so far as it is concerned, is erroneous inasmuch as its liability under the undertaking was limited to $1,100. The undertaking provides that the surety company will pay to the city "any judgment which may be recovered in an action to enforce the aforesaid lien, not exceeding the sum of eleven hundred ($1100) dollars." The recovery here referred to is exclusive of costs. A specified amount was stated in the notice of lien to which the claimant was entitled and for which a lien was claimed, and it was to extinguish that claim, so far as the particular fund was concerned, that the undertaking was given. The amount recovered was less than $1,100, and the fact that the costs — that is, the expenses of the litigation — made the total judgment in excess of $1,100, cannot be held to relieve the surety. If it could all the surety would have to do to be relieved or to render nugatory its undertaking, would be to litigate long enough so that the costs and the amount recovered would exceed the amount specified in the undertaking.
The judgment appealed from, therefore, must be modified so far as the surety company is concerned, by deducting from the amount recovered as damages the sum of seventy-five dollars and the interest on such sum included in the judgment, and as thus modified should be affirmed, without costs to either party, and as to the defendant Burke he being obligated to pay the contract price irrespective of the notice of lien, the judgment should be affirmed, with costs.
PATTERSON, O'BRIEN, HATCH and LAUGHLIN, JJ., concurred.
Judgment affirmed, with costs.