Kertscher & Co. v. Green

New York Supreme Court

Kertscher & Co. v. Green

67 Misc. 293, 124 N.Y.S. 461

CourtNew York Supreme Court

DecidedApril 15, 1910

StatusPublished

Cited by1 cases

This text of 67 Misc. 293 (Kertscher & Co. v. Green) is published on Counsel Stack Legal Research, covering New York Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Kertscher & Co. v. Green, 67 Misc. 293, 124 N.Y.S. 461 (N.Y. Super. Ct. 1910).

Pincite

Opinion

Fitzgerald, J.

It is claimed that plaintiff, by the terms of his contract, agreed to waive his statutory right to file a lien. Seheid v. Rapp, 121 Penn. St. 593; Long v. Oaffrey, 93 id. 526; Matthews v. Young’, 16 Mise. ¡Rep. 525, are cited in support of this proposition. By the contract in Matthews v. Young, supra, plaintiff had unequivocally and by precise words waived his right to file a mechanic’s lien, and my attention has not been called, nor have I been able to find, any case „in this State which holds that an agreement “ not to suffer or permit a mechanic’s lien" to he filed or remain on [294]*294the property ” has_ heen held as a waiver of a party’s right to file a lien on his own behalf. To prevent the contractor from filing1 a lien against the building, there must be an express covenant against liens, or a covenant resulting as a necessary implication from the language employed, and that the implied covenant should so clearly appear thatthe mechanic or materialman can understand it without consulting a lawyer as to its legal effect-.” Schmid v. Palm Garden Imp. Co., 162 Penn. St. 211. In Lauer v. Dunn, 52 Hun, 191; affd., 115 N. Y. 405, it was held that the provisions of a contract allowing the defendant to withhold payment in case a lien should be created did not apply to a lease to secure 'a debt that the builder himself might have against the defendant. In Long v. Caffrey, supra, there appears to have been a contract similar in character. The conclusion forced Upon me by the voluminous testimony of the witnesses and the many letters exchanged between the parties during the progress of the work is that the delays in performance were not attributable to plaintiff, and it is practically undisputed that the materials furnished were of good quality and that the work was done in a good and workmanlike manner. Judgment for plaintiff for $9,590.62. Counterclaim dismissed. Costs and allowances to be determined upon settlement of judgment upon notice.

Judgment for plaintiff.

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Fitzgerald, J.

It is claimed that plaintiff, by the terms of his contract, agreed to waive his statutory right to file a lien. Seheid v. Rapp, 121 Penn. St. 593; Long v. Oaffrey, 93 id. 526; Matthews v. Young’, 16 Mise. ¡Rep. 525, are cited in support of this proposition. By the contract in Matthews v. Young, supra, plaintiff had unequivocally and by precise words waived his right to file a mechanic’s lien, and my attention has not been called, nor have I been able to find, any case „in this State which holds that an agreement “ not to suffer or permit a mechanic’s lien" to he filed or remain on [294]*294the property ” has_ heen held as a waiver of a party’s right to file a lien on his own behalf. To prevent the contractor from filing1 a lien against the building, there must be an express covenant against liens, or a covenant resulting as a necessary implication from the language employed, and that the implied covenant should so clearly appear thatthe mechanic or materialman can understand it without consulting a lawyer as to its legal effect-.” Schmid v. Palm Garden Imp. Co., 162 Penn. St. 211. In Lauer v. Dunn, 52 Hun, 191; affd., 115 N. Y. 405, it was held that the provisions of a contract allowing the defendant to withhold payment in case a lien should be created did not apply to a lease to secure 'a debt that the builder himself might have against the defendant. In Long v. Caffrey, supra, there appears to have been a contract similar in character. The conclusion forced Upon me by the voluminous testimony of the witnesses and the many letters exchanged between the parties during the progress of the work is that the delays in performance were not attributable to plaintiff, and it is practically undisputed that the materials furnished were of good quality and that the work was done in a good and workmanlike manner. Judgment for plaintiff for $9,590.62. Counterclaim dismissed. Costs and allowances to be determined upon settlement of judgment upon notice.

Judgment for plaintiff.

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67 Misc. 293, 124 N.Y.S. 461, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kertscher-co-v-green-nysupct-1910.

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