Pendleburg v. Meade

1 E.D. Smith 728

• Court: New York Court of Common Pleas
• Decided: May 15, 1854
• Status: Published

Opinion

Woodruff, J.

The question raised by the demurrer in this case was in substance decided in Sullivan v. Brewster, &c., ante, p. 681, and in Doughty v. Devlin, ante, p. 625.

The claimant must show, before he can have a judgment, that work has been done for which the owner is actually liable, according to the terms of his contract with his contractor, for the erection of the building. No doubt, a lien may be acquired which will be effectual to reach money which does not become payable until after the filing of the notice; but the owner cannot be required to make payment until the moneys become payable.

Whether, when the owner himself institutes the proceedings, by compelling the claimant to proceed and foreclose, such owner can be permitted to defeat the claim by showing, that although the money is earned, or the work is in progress, the day of payment has not arrived, it is not necessary now to decide. Upon that point doubt has heretofore been suggested.

The defendant must have judgment on the demurrer, unless the plaintiff amend his complaint within ten days, and pays the costs.

Ordered accordingly.