Opinion
February 11, 1932.
Toomey Toomey, for the plaintiff.
Arthur H. Ellis, for the defendant.
The serious question herein for determination is, can the owner be allowed for amount expended for premiums and counsel fees in bonding liens?
In the case (1892) of Biershenk v. Stokes (18 N.Y. SUPP. 854) it was held that no such amounts may be legally allowed.
In the case of Sealy Co., Inc., v. Ards Building Corporation ( 216 A.D. 313) the court wrote (at p. 316): "The sum left in any event is but $36, as demonstrated above, which was subject to counsel fees, expenses of bonding and petty charges for completing the work," and in the dissenting opinion the court wrote (at pp. 317 and 318): "This left a corrected balance of $36.13 which defendant owner claimed was subject to counsel fees and expenses of bonding, although there is no proof as to these items, and they are not pleaded in the answer of the defendant owner. They cannot be allowed without being pleaded or proved." That case was affirmed in 244 New York, 565.
Herein such claim was pleaded and proved.
I find as follows:
That the amount due from owner is ................... $1,250 00 Cost of unfinished work .................... $489 72 Premiums on three bonds .................... 146 00 Counsel fees for bonding three liens ....... 75 00 ---------- Total ................................................ 710 72 --------- Amount due from owner .................................. $539 28 With $100 costs ........................................ 100 00 --------- In all ............................................... $639 28 --------- --------- Present findings.