Philip C. Hubbell v. John Schreyer (owner), Respondent, and Francis Muldoon (claimant), Appellant

Philip C. Hubbell v. John Schreyer (owner), Respondent, and Francis Muldoon (claimant), Appellant. (Submitted February 4, 1874; decided February 17, 1874.) This is a proceeding to enforce a mechanic’s lien upon premises in the city of New York, owned by defendant Schreyer, under the mechanic’s lien law of 1863. (Chap. 500, Laws of 1863.) In 1870, one Holt contracted with Schreyer to furnish the materials and do the mason work for four buildings upon the premises in question. Holt contracted with defendant Muldoon and two others, comprising the firm of Muldoon, Kenny & Doonan, to furnish the brown stone for $5,800, payable $3,000 when the fronts were up and the balance when the stone work was completed. After the fronts were up, Muldoon’s partners absconded and the contract was abandoned. Thereafter Holfc, Schreyer and Muldoon made an arrangement by which Holt drew on Schreyer in favor of Muldoon, for $2,755, the balance of the $5,800 unpaid, payable when the brown stone work should be completed. Holt on the same day accepted the draft, and Muldoon thereupon resumed and completed the contract on the 12th of January, 1872, and on that day filed notice of lien for $1,349, the balance then unpaid upon the draft. This notice, after stating properly the residence of claimant, stated that he had a claim against Holt for $1,349; and, after stating for what work and materials, added “ that such brown stone was furnished, cut and set in pursuance of agreements written and by parol between the said Thomas Holt and the said John Schreyer and me, the said Francis Muldoon,” and then naming the owner and describing the premises. The referee to whom the matter was referred allowed the claim of Muldoon, and a personal judgment was directed and entered against thé owner, Schreyer. The latter appealed and the G-eneral Term reversed the judgment upon the grounds: 1st. That a personal judgment was improper upon a claim stated in the notice to be against the contractors. 2d. That Muldoon acquired no valid lien, as the claim was due to him jointly with two others. IIeld, that the balance claimed was not under the original contract with the firm, nor was any part of it earned under that contract, as the amount due at the time it was abandoned had been overpaid; that as by the subsequent arrangement Muldoon assumed individually the completion of the contract, for the money earned under it his partners had no claim and were in no wise interested, and the undertaking of Schreyer and Holt to pay Muldoon, individually, was absolute; and that the notice filed described the claim with substantial accuracy; it was a claim against Holt in one sense, as he was the immediate debtor to Muldoon, and but for the acceptance of the draft, would have been the principal, and the subsequent part of the notice relieved the statement from all uncertainty, if any; but if there was a mistake in naming the debtor not clearly explained in other parts of the notice, it was covered by the second section of said act, which provides that no variance in that respect shall impair or affect the rights of a claimant. Also, held, that the personal judgment was proper for the reason that by the acceptance the debt became that of the owner as well as contractor, and the work was done and materials furnished upon the credit of both. Edwin T. Rice for the appellant. David McAdam for the respondent. [MAJORITY — Allen, J.,] Allen, J., reads for reversal of judgment of General Term, and for affirmance of judgment entered upon report of referee. All concur except Folger, J., not voting. Judgment accordingly.