Michael Mayer, Respondent, v. Ellen Killilea, Appellant

Michael Mayer, Respondent, v. Ellen Killilea, Appellant. Lim Law—What order by a contractor, and agreement by an owner, to pay a materialman, does not fall within section 15 of the Lien Law, requiring orders to be filed in the county cle:Ks office. Ellen Killilea, who had entered into a contract with one Engle to make improvements on premises owned by her; was present at the time when one Michael Mayer, who had supplied Engle with materials for the prosecution of the work, refused to furnish any more material until the amount then due him was paid. Mrs. Killilea thereupon requested Mayer to continue to furnish the materials and promised that if he would do so she would pay his entire claim for the materials. ' The contract was reduced to writing in the following manner: " Pay to the order of Michael Mayer on my payment one thousand dollars, on my other payment Pour hundred & Sixty dollars — 1000 460 1460 and charge the same to my account. “PEED ENGLE. (Signed.) “I will pay to Michael Mayer the above when due. “ Mrs. E. KILLILEA. (Signed.) ” JBéld, that the writings constituted an independent contract between Mrs. Killilea and Mayer and did iiot fall within the letter or spirit of section 15 of the Lien Law (Laws of 1897, chap. 418), which provides that no order drawn by a contractor or sub-contractor upon the owner of real property for the payment of money due under a building contract, shall be valid until a copy thereof is filed in the county clerk’s office. Appeal by the defendant, Ellen Killilea, from a judgment ef the County Court of Kings county in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 18th day of March, 1901, upon the decision of the court rendered after a trial before the court, a jury having been waived. John II. Kemble, for the appellant. Isiclor Buxbaum, for the respondent. [MAJORITY — Woodward, J.:] Woodward, J.: The defendant is the owner of certain premises in Brooklyn. She entered into a contract with one Engle to make improvements on her property. Engle was a builder and had entered into a contract with the plaintiff to furnish certain materials for carrying on the work, the stipulated price being $1,650, payable in installments, according to the progress of the work. Engle failed to make the second payment when due. Nathaniel Conklin, representing the plaintiff, called upon Engle and demanded payment of the second installment of $1,000, informing Engle that no more materials would be furnished by plaintiff unless the amount then due was paid. It appears that the defendant was present when this demand was made and overheard the conversation ; that she asked Conklin to complete the contract and to furnish the materials, as she was obliged to have the building finished, having rented the same under a lease, promising to pay the plaintiff his' entire claim for the materials in full. The matter was put into a writing in the following manner: “ Brooklyn, July 28th, 1900. “ Mr. Fred Engle : “ Pay to the order of Michael Mayer on my payment one thousand dollars, on my other payment Four hundred & Sixty dollars — 1000 460 1460 and charge the same to my account. “ FRED ENGLE. (Signed.) “ I will pay to Michael Mayer the above when due. “ Mrs. E. KILLILEA. (Signed.) ” The defendant subsequently paid $500 on this account, leaving an unpaid balancte of $960, and this action was brought to recover that sum, resulting in a judgment for the plaintiff, the defendant appealing. ' It seems that after the defendant had entered into this agreement to pay the plaintiff the amount of his claim for materials furnished and to be furnished,' other persons, materialmen and laborers, filed mechanic’s liens upon the premises, their claims aggregating an amount sufficient to take up practically the entire contract price of the improvement, and the defendant refused payment to the plaintiff on the ground that the order had not been filed in the office of the county clerk as provided by section 15 of the Lien Law (Laws of 1897, chap. 418). This section provides that “ No assignment of a contract for the. performance of labor or the furnishing of materials for the improvement of real property, or of the money or any part thereof due or to become due therefor, nor an order drawn by a contractor or sub-contractor upon the owner of such real property for the payment of such money, shall be valid, until the contract or a statement containing the substance thereof, and such assignment or a copy of each or a copy of such order be filed in the office of the county clerk of the county wherein the real property improved or to be improved is situated, and such contract, assignment or order shall have effect and be enforceable from the time of such filing.” The defendant relies upon this section as a defense, it being conceded that the order above set out has not been filed in the manner above prescribed; but we are of opinion that the order here involved is something more than the order of the contractor, and that it has become the personal contract of the defendant with the plaintiff, and is not within the letter or spirit of the statute. If the last clause of the section above quoted had read, “ and such contract, assignment or order shall have effect nnd be enforceable as a lien upon the premises from the time of such filing,” no' one would have thought of suggesting that it was a defense to the present action. Yet this is clearly the intent of the provision, and there is no reason to suppose the Legislature contemplated a rule by which a contract, based upon a substantial consideration, should be declared void merely because it appeared in the form of an order upon the owner of the premises. This action is not brought under the Mechanics’ Lien Law, but upon an independent contract on the part of the defendant with the plaintiff. The court below has found as a matter of fact that the “ defendant, in consideration of the plaintiff furnishing the balance of the building materials, part of which said building materials had been delivered, and to enable the said Fred Engle to finish the building of the house of which said defendant was the owner, by an instrument in writing, which is annexed to the complaint as Schedule B, promised to pay this plaintiff the sum of fourteen hundred and sixty ($1,460.00) dollars when the same became due ; ” and “ that the plaintiff in consideration of said promise by the defendant delivered the balance of said building materials.” It follows naturally from this state of facts that the plaintiff is entitled to recover the amount still due upon this contract, it being conceded that the improvement has been completed. The judgment appealed from should be affirmed, with costs. ' All concurred. J udgment affirmed, with costs.