Plumbing v. Kesdeit Realty Corp.

15 A.D.2d 546, 223 N.Y.S.2d 6, 1961 N.Y. App. Div. LEXIS 6950

Opinion

The written agreement, which is merely part of the entire agreement, and the undisputed testimony of the parties, show that a separate contract was made for each job or house in this building project. The evidence is insufficient to prove that a notice of lien was filed within four months after completion of any one contract or within four months after the last item of labor or materials was furnished thereunder; hence, plaintiff failed to establish the validity of the notice of lien (cf. Lien Law, § 10). The proof establishes that work was done on the job lmown as the barn and on the house known as job number 3, and that payment therefor was not made. Although plaintiff failed to establish a lien in respect of any work, it is entitled to personal judgment against defendants Kesdeit and Deitkess for the work which the proof shows to have been done in respect of the barn and job number 3. The Referee, however, inadvertently omitted to credit said defendants with $982,29, which he found to be an overpayment on the basic contract prices. The action being to foreclose a mechanic’s lien, but in form only, so as to satisfy the conditions stated in the bond filed to discharge the lien, and a lien not having been established, plaintiff is not entitled to judgment against the bonding company, defendant Hartford Accident So Indemnity Company. Nolan, P. J., Beldock, Ughetta, Pette and Brennan, JJ., concur.