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Herrmann & Grace v. City of New York

Supreme Court of New York, Appellate Division

February 11, 1909


Appeal from Special Term, New York County.

Action by Herman & Grace against the City of New York, the American Radiator Company, John Williams and another, composing the firm of Williams & Gerstle, Jacob Fleischauer, the Heine Safety Boiler Company, and others. From a judgment for plaintiffs, the defendants named, except the city of New York, appealed. Affirmed as modified.

[114 N.Y.S. 1109] Wm. L. Snyder, for appellant American Radiator Co.

T. Ellett Hodgskin, for appellant Heine Safety Boiler Co.

L. Laflin Kellogg, for appellant Fleischauer.

J. Power Donellan, for respondent Johnson Service Co.

Oliver C. Semple, in pro. per.



In this action to foreclose a mechanic's lien there are several appellants. Their claims relate to the distribution of a fund in the hands of the comptroller of the city of New York. On February 5, 1903, the firm of Williams & Gerstle entered into a contract with the board of education of the city of New York and the city of New York for installing heating and ventilating apparatus in a public school for the sum of $23,995. Williams & Gerstle proceeded with the execution of the contract until February or March, 1905, when they abandoned it. The city thereupon proceeded to complete the work at the expense of the contractors. When the work was finally completed there remained unexpended a fund of $6,049.25 applicable to the payment of lienors and others who might be able to establish claims thereto.

Prior to the abandonment of the work by the contractors, and on April 9, 1904, the plaintiffs had filed a lien for $2,200. The regularity, validity, and priority of this lien are not questioned. On June 4, 1904, the defendant Heine Safety Boiler Company, which had commenced an action against Williams & Gerstle, for $6,650 damages for the breach of a contract not connected in any way with the work in question, sued out a warrant of attachment, and caused it to be served upon the comptroller, together with a notice that it was thereby intended to levy upon all moneys then due or to become due to said Williams & Gerstle. On June 27, 1904, the Johnson Service Company (then known as the Johnson Temperature Regulating Company) filed a lien for $3,090, and on July 9, 1904, the American Radiator Company filed a lien for $1,007.02. Other liens were filed, which, for the purposes of this appeal, do not require consideration, since the claimants under them have not appealed.

The judgment appealed from awards the plaintiffs, the Johnson Service Company and the American Radiator Company, the full amounts for which they filed liens, thus exhausting the fund applicable to the payment of liens. As to the claim of the attaching creditor, the Heine Safety Boiler Company, it is found that on June 1, 1904, the date of the levy of the attachment, there was no claim in existence in behalf of Williams & Gerstle against the city upon which a valid levy could be made. The facts, so far as they bear upon the finding, are as follows:

On January 26, 1904, before any lien or attachment had been filed or served, work had been done by the contractors of the estimated value of $2,549.25, which was retained by the city under the clause in the contract which permitted it to retain, until the full completion of the contract, 15 per cent. of the amounts earned by the contractors. On May 4, 1904, after the filing of plaintiff's lien, but before the service of the Heine Safety Boiler Company's attachment, there had been certified as having been earned by the contractors $2,390, of which [114 N.Y.S. 1110] 85 per cent., or $1,997.50, was presently payable; the balance being retained to await the completion of the contract.

A mechanic's lien attaches primarily to whatever may be due to the contractor when the lien is filed. If nothing is then due, or if the amount due is insufficient to meet the lien, it attaches to any amount which may subsequently become due under the contract. Van Clief v. Van Vechten, 130 N.Y. 571, 29 N.E. 1017.An attachment, on the other hand, applies only to an amount which has become an indebtedness to the defendant, whose property was attached, at the time of the levy, and not to an indebtedness which may accrue after the levy of the attachment. As has been said, there had been earned and was presently payable under the terms of the contract, when the attachment was levied, $1,997.50, and in addition thereto work had been done to the estimated value of $2,549.25, which, however, was not payable until after the completion of the contract. The question is whether this latter sum constituted, at the time, a present, attachable indebtedness from the city to Williams & Gerstle. The contract, as has been said, provided for the payment of a lump sum; the clause relating to such payment reading as follows:

" That if the contractor shall well and faithfully perform and fulfill this contract, and keep every covenant on his part herein contained, the party of the first part will then, but not before, pay to the contractor the sum of twenty-three thousand nine hundred and ninety-five dollars ($23,995). In order to enable the contractor to prosecute the work advantageously, the said sum or amount shall be paid in installments as the work progresses, as follows, viz.: In installments of eighty-five per centum (85 per cent.) of the value of the work performed upon application made in writing to the superintendent by the contractor, together with an accurate schedule in detail of the materials furnished and work done since the last preceding payment. The final payment of the balance due and unpaid under the contract, including the fifteen per cent. (15 per cent.) of the total amount of the contract price, ...

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