Monroe County NyArchives Court.....Vogel, Catharine Vs. Jacob Luitwieler 1889
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Source: Reports Of Cases - New York
Written: 1889

Fifth Department, March Term, 1889.

CATHARINE D. VOGEL, Respondent, v. JACOB G. LUITWIELER, Appellant, Impleaded 
with Others.

Mechanic's lien act, chapter 342 of 1885 — right of a sub-contractor to file 
liens — sufficiency of the notice—payment by the owner to the principal 
contractor.

In an action brought to foreclose a mechanic's lien, created under chapter 342 
of the Laws of 1885, against the owner and the defendant, Luitwieler, it 
appeared that the plaintiff, who had entered into a contract with the owner to 
construct and finish a house, completed the work on the twenty-eighth day of 
July, and, on the same day, filed a notice as required by the provisions of the 
said act for the purpose of creating a lien on the premises for the amount then 
due to her. For the purpose of carrying out the said contract she had agreed 
with one Poppet to paint the building, and Poppet had done the work and 
purchased the materials used in painting the house from the defendant 
Luitwieler, who had thereafter filed a lien for the materials so furnished.

Upon an appeal from a judgment deciding that Luitwieler had no lien upon the 
premises, and directing that all the moneys due upon the contract be paid to the 
plaintiff:

Held, that the defendant Luitwieler, who supplied the paints to Poppet, was 
embraced within the class of persons mentioned in the first section of the said 
mechanic's lien act, who might secure a lien on the premises as "sub-
contractors."

That it was one of the chief purposes of the law to secure persons who supply 
materials, which are used in the construction or finishing of the building 
erected on the lands of the owner, by giving them a lien thereon.

That the owner was entitled to have the appellant's lien paid and discharged out 
of the moneys due the contractor, and that the act provided for a case like 
this, with a view of protecting the owner from being compelled to make double 
payments to secure a release of his premises from the liens placed thereon by 
the contractors or sub-contractor, material-men or laborers. 

The plaintiff claimed that the notice of the Luitwieler lien was insufficient as 
it did not state the nature and character of the materials furnished by 
Luitwieler.

Held, that as the notice stated that the materials were furnished and used for 
the erection of the building in question, and as the plaintiff, the contractor, 
had engaged Poppet to do the painting and supply the materials, that, as between 
the parties to this appeal, the notice was a sufficient compliance with the act, 
and that the plaintiff had not been misled to her injury by reason of the 
omission complained of.

The plaintiff claimed that it did not appear that she was indebted to the sub-
contractor Poppet for the work and labor and materials furnished in painting the 
house:

Held, that as a liability once created was supposed to continue until it was 
shown that it had been discharged, it could not be assumed that Poppet had been 
paid until that fact was proved.

That, even if it appeared that Poppet had been paid for the work and labor which 
he had performed, the right of the appellant to place a lien upon the premises 
as a security for his debt was not thereby extinguished, as the right to do so 
was secured to him by the statute, and its validity was not made to depend upon 
the question whether his vendee had been paid by the party with whom the vendee, 
contracted to do the work and labor.

Appeal from a judgment entered in the office of the clerk of Monroe county on 
July 6, 1888, upon a decision rendered at the Monroe Special Term in an action 
to foreclose a mechanic's lien, created by and under chapter 342 of the Laws of 
1885.

The plaintiff entered into an agreement with Edward Woods, who was then the 
owner of the premises, to construct and finish a house to be located thereon for 
the price of $3,070. Afterwards Woods sold and conveyed the premises to the 
defendant Forsyth, who assumed and agreed to perform the building contract. The 
plaintiff, on or about the twenty-eighth day of July, completed her contract, 
and there was then due her thereon the sum of $635; and she also did extra work 
of the value of $225, under and in pursuance of the provisions of the building 
contract. On the 28th day of July, 1887, and within ninety days after the 
completion of the contract, the plaintiff filed a notice, as required by the 
provisions of the said act, for the purpose of creating a lien on the premises. 
For the purpose of carrying out the said contract on her part, the plaintiff 
agreed with one Poppet to paint the building and furnish the materials,
therefor. The price she was to pay for the work does not appear by the findings. 
Poppet did the work and furnished the material as agreed. He purchased the 
materials used in painting the house from the defendant Luitwieler, and they 
were of the value of $225. The trial court found, as a fact, that he sold and 
delivered the materials to Poppet upon the sole credit of the latter, and they 
were charged by Luitwieler to said Poppet in an account upon the books of 
Luitwieler, and that the latter knew, when the goods were sold and delivered, 
that they were to be used in constructing the building on the premises. The 
complaint sets forth the fact that Luitwieler filed a notice of lien, and then 
avers that the same is void and of no effect, and, in form and substance, the 
same does not comply with the provisions of the statute; and that he did not 
furnish the plaintiff or the owner of the building any goods, wares or 
merchandise, and that neither the plaintiff or the owner is indebted to him for 
any materials which he furnished in the construction of said building. The 
judgment demands that the plaintiff's lien be adjudged prior and superior to the 
lien of the defendant Luitwieler. The trial court found, as a matter of law, 
that Luitwieler had no lien upon the premises, and directed that all the moneys 
due upon the contract be paid to the plaintiff. The judgment was entered in 
accordance with the findings. Luitwieler alone appeals from the judgment.

Turk & Barnum, for the appellant.

John J. Snell, for the respondent.

Barker, P. J.:

The first and principal question in the case is, was the defendant Luitwieler, 
who supplied the paints to Poppet, the sub-contractor, embraced in the class of 
persons mentioned in the mechanic's lien act who might secure a lien on the 
premises on compliance with the provisions of the law? (Laws 1885, chap. 342.) 
The first section provides that "any person * * * who shall hereafter perform 
any labor or service, or furnish any materials which have been used or which are 
to be used in erecting, altering or repairing any house, building or, * * * with 
the consent of the owner, as hereinafter defined, or his agent, or any 
contractor or sub-contractor, or any other person contracting with such owner to 
erect * * * may, upon filing the notice of lien prescribed in the fourth section 
of this act, have a lien for the principal and interest of the price and value 
of such labor and material. * * * But in no case shall such owner be liable to 
pay, by reason of all the liens filed pursuant to this act, a greater sum than 
the price stipulated and agreed to be paid in such contract, and remaining 
unpaid at the time of filing such lien, or in case there is no contract than the 
amount of the value of such labor and material then remaining unpaid, except as 
hereinafter provided." The facts found by the trial court bring the defendant 
Luitwieler within the terms of the act, and he, on complying with the other 
provisions of the act, could secure a lien on the premises although the material 
was supplied to a sub-contractor and on his personal credit. It is one of the 
chief purposes of the law to secure persons who supply material which is used in 
the construction or finishing of the building erected on the lands of the owner 
by giving them a lien thereon. Usually the question whether a lien has been 
created or not arises between the claimant and the owner of the premises. In the 
case now before us no one disputes the validity nor the amount of the 
plaintiff's lien. The owner does not interpose any defense, nor has he appeared 
in the action. He admits that he is indebted to the plaintiff under the building 
contract in the sum mentioned, and also that both the plaintiff and the 
appellant have good and valid liens. When the building was completed there was 
due and unpaid on the contract the sum of $635. It is unnecessary, in disposing 
of the questions now presented, to take any notice of the amount due for extra 
work, as the appellant's claim is less than the sum due the plaintiff by the 
terms of the contract. The act provides for the foreclosure of liens created in 
pursuance of its provisions, and all lienors, prior or subsequent to the 
plaintiff's lien, may be made parties to the action. The manner and form of 
instituting and prosecuting any such action to judgment, or an appeal from such 
judgment shall be the same as in actions of foreclosure on real property, except 
as in the said act otherwise specially provided. (Secs. 7, 8.) It is also 
provided that all persons who have filed notices of liens shall, by answer in 
the action, set forth the same, and the court in which such action is brought 
may settle and determine the equities of all the parties thereto, and decide as 
to the extent, justice and priority of the claims, of all the parties to the 
action, and upon every counter-claim or set-off alleged therein to the extent of 
their respective jurisdictions.

In justice and equity the owner is entitled to have the appellant's lien paid 
and discharged out of the moneys due the contractor, and the act provides for a 
case like this with a view of protecting the owner from being compelled to make 
double payment to secure a release of his premises from the liens placed thereon 
by contractors, sub-contractors, material-men or laborers. In section 20 there 
is a provision that all persons entitled to liens under the provisions of the 
act, except those who contract with the owner, shall be deemed sub-contractors, 
and the court, in the judgment, shall direct the amount due sub-contractors to 
be paid out of the proceeds of sales before any part of such proceeds are paid 
to the contractor; and that all persons standing in equal degree as co-laborers, 
or the various persons furnishing materials, shall have priority according to 
the date of filing their liens; and where several notices or liens are filed for 
the same demand, as in case of a contractor including claims for workmen to whom 
he is indebted, and the lien by workmen, the judgment shall provide for the 
proper payment so that under the liens filed double payment shall not be 
required; and in every case where different liens are asserted against property 
the court, in the judgment, must declare the priority of such liens, and the 
proceeds of the sale of the property must be applied to each lien in the order 
of its priority, (Secs. 20, 21.) By the very terms of the act the defendant is 
to be treated as a sub-contractor, and is entitled to have his debt paid out of 
the amount due the plaintiff on her contract before any sum can be retained by 
her out of the proceeds of the sale. The equity of these provisions is manifest, 
and arises out of the fact that the person who furnishes the material has 
contributed the amount of his debt towards the completion of the contract, and 
such sum is embraced in the amount due the contractor and secured by the lien 
which he placed on the property. Where the contractor and the sub-contractor 
have, as each may, placed a lien on the property there can be but one payment 
enforced from the owner, and that is limited to the amount due on his contract; 
and the act justly provides, and the court cannot disregard its provisions, that 
the sub-contractor shall be first paid.

As the sub-contractor would not be a proper party in an action to foreclose a 
lien placed on the property by the contractor, unless he has secured a lien on 
the premises for his own security, the plaintiff may litigate with him the 
validity of the lien set up by the sub-contractor. The fact is found, and the 
evidence supports the findings, that the appellant supplied material which was 
of the value set forth in the notice of lien, and the only other question left 
for inquiry is whether the notice, as filed, is in substantial compliance with 
the requirements of the statute?

The only criticism made by the respondent as to the sufficiency of the notice is 
that it does not state the nature and character of the material furnished by the 
claimant. We think that the notice may be regarded as a substantial compliance 
with the requirements of the fourth section, as between the claimant who asserts 
the lien and the plaintiff who raises the question. If the material had been 
furnished directly to the plaintiff, instead of his sub-contractor, we think it 
could be fairly said that an objection of this character would be without merit, 
as the contractor could not be misled by the omission. The notice is required 
for the purpose of giving information to the owner, so that he may, upon 
inquiry, ascertain whether the material has been actually furnished or not, and 
the value of the same. In this case we are unable to see how the plaintiff, the 
contractor, has been misled or can now be surprised because the nature and 
character of the material was not stated in the notice. He engaged Poppet to do 
the painting and supply the materials, and the notice states that the materials 
were furnished and used for the erection of the building in question; and that 
there was due from Leonard Vogel, who was the plaintiff's agent in making the 
contract to furnish the material, the sum of $225, the amount now claimed. The 
contract for the constructing of the building was made in the name of Leonard 
Vogel, as agent, without disclosing that the plaintiff was, in fact, his 
principal; and, in legal effect, it was Vogel's, contract and not the 
plaintiff's. The act itself declares that it is a remedial statute, and is to be 
construed liberally to secure the benefits, interests and purposes thereof; that 
a substantial compliance with its provisions shall be sufficient for the 
validity of the lien or liens provided thereby, and to give jurisdiction to the 
courts to enforce the same. We are inclined to hold that, as between the parties 
to this appeal, the notice was a substantial compliance with the act, and that 
the respondent has not been misled to her injury by reason of the omission 
complained of. The case of Luscher v. Morris (18 Abb. N. C., 67) is not in point.

The respondent makes the further point that it does not appear that the 
contractor is indebted to the sub-contractor, Poppet, for the work and labor and 
material furnished in painting the house, and for that reason the appellant did 
not establish a valid lien on the premises. We cannot assume that Poppet has 
been paid, and, until the contrary appears, it may be presumed that he has not 
been, as a liability once created is supposed to continue until it is shown that 
it has been discharged. But if it appeared that Poppet had been paid for the 
work and labor which he performed, the right of the appellant to place a lien 
upon the premises as a security for his debt was not thereby extinguished; for 
the right was secured to him by statute, and its validity is not made to depend 
upon the question whether his vendee had been paid by the party with whom the 
latter contracted to do the work and labor. Such a construction placed upon the 
statute would contravene and defeat its express objects and purposes, and, so 
far as it was intended as a protection for material-men and laborers, it would 
enable the contractor and the sub-contractor, by concert of action, to deprive 
them of the benefits of the statute.

The judgment should be modified by directing the payment of the appellant's 
claim, in the first instance, out of the proceeds of sale, and that the same be 
modified in other respects so as to comply with the views which we have 
expressed; and, as modified, the judgment is affirmed, with costs of this appeal 
to the appellant, to be paid out of the proceeds of the sale ordered to be paid 
to the respondent, and, if they are insufficient, to be paid by her personally 
the order to be settled by Barker, P. J.

Dwight and Macomber, JJ., concurred.

Judgment modified as specified in opinion, and, as modified, affirmed; judgment 
to be settled by Barker, P. J.

Additional Comments:
Reports of Cases Heard and Determined in the Supreme Court of the State of New 
York. Marcus T. Hun, Reporter. Volume LIX, 1889, HUN 52. Banks & Company, 
Albany, NY. 1901.

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