Lehigh Portland Cement Co. v. City of Poughkeepsie

179 A.D. 368, 166 N.Y.S. 454, 1917 N.Y. App. Div. LEXIS 7397

Opinion

Putnam, J.:

The Bridgeport Construction Company had two contracts with the city of Poughkeepsie for street paving, under which it claimed certain moneys from that city. Among its subcontractors was the Mack Manufacturing Company, which had furnished paving blocks, on which the subcontractor claimed a balance, over part payments, of $2,196.74.

It is conceded that this work was completed in October, 1914. About November twelfth the city engineer, who was also superintendent of public works, examined the work and then presented to the board of public works the assess- - ment roll, which was approved and sent to the common council. The contract with the Bridgeport Construction Company had this clause: “ It is hereby agreed that upon the completion of the work and the certificate of approval thereof, signed by the engineer, and filed with the Board of Public Works, the said Board will certify to the same and accept said work within fifteen days after the filing.”

No such certificate of -approval was ever filed with the board of public works, and that board has never formally accepted the work. On December 5, 1914, the Bridgeport Construction Company was adjudged bankrupt. Appellant filed its notice of lien on January 6, 1915, with the proper city officials of Poughkeepsie.

However, on January 26, 1915, the Bridgeport Construction Company filed with such city officials an assignment dated July 28, 1914, of all moneys due under such contracts to the defendant William H. Frank.

On this appeal the issues are between Mr. Frank as such assignee and the appellant. The single point raised is whether appellant’s notice of lien was seasonably filed, that is, within thirty days after the acceptance of the public improvement, under section 12 of the Lien Law (Consol. Laws, chap. 33 [Laws of 1909, chap. 38], § 12, as added by Laws of 1911, chap. 873).

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Considering that a subcontractor has to submit to the express terms of the main contract (Szemko v. Weiner, 176 App. Div. 620), we think appellant was entitled to rely on the provision for acceptance embodied in this contract, which was on the public files of the city. The liberal construction required by section 23 of the Lien Law would not be followed by the court, if we should hold that this subcontractor had lost the right to file a lien through an acceptance of the improvement in November, without any certificate or other formal evidence, such as the contract specified.

It follows that the judgment should be modified so as to sustain the appellant’s lien. The tenth finding of fact should, therefore, be modified, with a conclusion of law to the effect that the appellant has a valid, subsisting lien against the fund in the hands of the treasurer of Poughkeepsie, applicable to this improvement, for $2,196.74, with interest from November 12, 1914, after payment to plaintiff, and prior to the claims of defendants Arnold as trustee in bankruptcy, and of William H. Frank, and as thus modified the judgment is affirmed, with costs of this appeal to said appellant.

Jenks, P. J., Thomas, Stapleton and Blackmar, JJ., concurred.

Judgment modified in accordance with opinion, and as so modified affirmed, with costs of this appeal to the appellant. Order to be settled on notice.

Since amd. by Laws of 1916, chap. 507.— [Rep.