Robert S. Smyth, Respondent, v. Alfred Marsich and Others, Respondents; The Mayor, Aldermen and Commonalty of the City of New York, Appellant

Robert S. Smyth, Respondent, v. Alfred Marsich and Others, Respondents; The Mayor, Aldermen and Commonalty of the City of New York, Appellant. New York — lien filed against moneys dm to a city contractor ■—burden of proof . Where an action is brought to foreclose a lien filed by the plaintiff against, money due or to grow due to a contractor for work done under a contract. with the city of New York, and the city interposes an answer admitting that-it is a municipal corporation and that the lien was filed, but alleging that it has no knowledge or information sufficient to form a belief as to any of the-other allegations of the complaint, the burden rests upon the lienor to show that money was due to the contractor under the contract in question. Appeal by the defendant, The Mayor, Aldermen and Commonalty of the City of Hew York, from a judgment of the Supreme Court-in favor of the plaintiff and of certain of the defendants, entered in the office of the clerk of the county of Hew York on the 24th day of October, 1894, upon an order confirming the report of a referee. The judgment decreed that the amount due from the defendant, the Mayor, Aldermen and Commonalty of the city of Hew York to-the defendants Alfred Marsich, and Thomas A. Coogan, assignee, upon the contract for constructing branch sewers and appurtenances, in Melrose avenue, from Third avenue' to One Hundred and Fifty-fourth street in the city of Hew York, dated March 4, 1892, was $5,843.33, and upon the contract for constructing sewers and appurtenances in Melrose avenue, between One Hundred and Sixtieth and One Hundred and Fifty-sixth streets, with branches in One Hundred and Fifty-seventh, One Hundred and Fifty-eighth and One-Hundred and Fifty-ninth streets, in said city between said parties was $8,193.01; and further adjudged and decreed that the plaintiff herein recover from the defendant the Mayor, Aldermen and Commonalty of the city of Hew York his costs as taxed, amounting to the sum of $627.05, to be paid out of the moneys in the hands of the comptroller of the city of Hew York due to said defendants Marsich, and Coogan, assignee, upon said contracts; and further adjudged and decreed that the above-named co-defendants recover from the Mayor, Aldermen and Commonalty of the city of Hew York the amount of their various liens on the contracts as aforesaid and finally ordered that the said comptroller of the city and county of Hew York pay to Thomas A. Coogan, assignee of Alfred Marsich, the remainder of the sum of $14,036.34, found by the referee to have been earned by said Marsich and Coogan,. assignee, after deducting the amounts of the liens and the costs above referred to. Theodore Connoly and John L. O’Brien, for the appellant. C. A. Burgess, for plaintiff, respondent. Henry W. Bridges, for the respondents Otis and Gorsline. Earley & Prendergast, for respondent Bell. George M. Curtis, for respondent Coogan. [MAJORITY — Patterson, J.:] Patterson, J.: This is an appeal from a judgment entered upon the report of' a referee in an action brought against the Mayor, Aldermen and Commonalty of the city of; Hew York, t,o foreclose a lien filed by the plaintiff against two certain contracts and moneys due or to: grow due to a contractor for work to be done for the city. With the Mayor, Aldermen and Commonalty were joined as defendants the contractor for the work and his assignee, and also numerous other persons who had filed liens against the moneys referred to.. It appears that about the 4th day of March, 1892, one Alfred Marsich entered into two certain contracts with the authorities of the city of Hew York in the annexed district to construct a sewer and branches on Melrose avenue from Third avenue to One Hundred and Fifty-fourth street, and in the same avenue between Gne Hundred and Fifty-sixth and One Hundred and Sixtieth, streets. Marsich assigned these contracts to one Thomas A. Coogan, and Coogan proceeded to do some work thereunder. In the answers of all the defendants who claimed liens the facts supposed to give him [each defendant lienor) the right to foreclose and to recover are pleaded. The answer of the city of Hew York admits that it is a municipal corporation, and the making of" the' contracts with Marsich, and also that twenty-seven of the defendants filed liens upon the moneys due, or to grow due under the contracts.. The only other averment of the city’s answer is a denial' of knowledge or information sufficient to form a belief as to any of the alle^ gations in the complaint contained not therein before specifically admitted. The issues were referred to a referee, who made his report, in which he allows the claims of all the lienors, plaintiff and defendants, except the defendant Fritz Bode, and it is not important to refer at length to that. In his report the referee -finds (the fourth finding of his supplemental report) that there was work done by Marsich and his assignee, Coogan, under the contracts in suit, amounting to the sum of $14,036.34, and that there were sufficient moneys due and owing from the city of Hew York to said contractor, Marsich, and Coogan, his assignee, at the time of filing the liens in suit to fully satisfy the same. How the referee could have reached this conclusion it is impossible to understand from the proofs as they are presented to us. The parties have stipulated and the referee has certified that the case on appeal contains “ all the evidence taken upon the trial on the question involved in the appeal,” which must of course' relate to the question of fact, and that question of fact necessarily is: What was the amount, if anything, due to the contractor at the times the liens'of the plaintiff and the other lienors were filed? The city of Hew York had denied in its answer any indebtedness to the contractor, for its general denial was sufficient for that purpose (Milbank v. Jones, 141 N. Y. 340), and it was for the lienor to show that money was due to the contractor under the contracts for building the sewers.- (Beardsley v. Cook, 143 N. Y. 144.) The referee’s finding upon this subject is simply unintelligible. An employee of the comptroller’s office was called to the stand as a witness. It appears that he produced from the comptroller’s office a statement which had been' transmitted to that office by the street commissioner of the annexed district, and from which statement it was shown that on one of the contracts there was a balance in favor of the contractor of $762.95, and on the other an indebtedness to the city for $2,335.31, and yet as the result of this statement for some mysterious reason the referee found that the city was in possession of enough money of the contractors to pay the aggregate of all the liens set up in the complaint and in the answers of the several lienors. This is sufficient to dispose of the whole case and to show that there is no foundation whatever in the evidence for the. report the referee made. It does not appear that the referee reached the result ~by excluding from the statement matters charged by the city against the contractor for liquidated damages not claimed in the ■city’s answer. We cannot learn from this record upon what theory the referee based his findings. He made two reports, in the first of which he shows conclusively that the contractors owed the city, as the. ultimate result of both contracts, a large balance, and notwithstanding that indebtedness of the contractors to the city, he pro-needed to give to^ each lienor thé full amount of his claim. In the ¡second report he simply reaffirms all of his findings in the first report ■except such as are changed or modified in the second report, and •then finds that the work done under the contracts by Marsich and '.his assignee, amounting to $14,036.34, and that there was sufficient moneys due and owing from the city on the contracts at the time ■of the filing of the liens to fully satisfy the same. He does hot do ¡away with his findings in the first report that the net result of the transaction to the contractors is an indebtedness by them to the city. There is absolutely no evidence in the case to justify the finding as to there being moneys due the contractors from which the liens could be paid, and, therefore, without referring to the many other ¡errors which are conspicuous in the record, the judgment must be ¡reversed and a new trial ordered before another referee to be ■appointed by the order entered upon this decision, with costs to the .appellant to abide, the event. Yah Bbunt, P. J., Babbett, Rumsey and Williams, JJ., ■concurred. Judgment reversed and new trial ordered before another referee •to be appointed by the order entered upon this decision, with costs' ;to the appellant to abide the event.