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Wexler v. Rust

Supreme Court of New York, Appellate Division

April 21, 1911

ADOLF WEXLER and ADAM ZORN, Respondents,
JOHN HERMAN ERNST RUST, Appellant, Impleaded with AUGUSTA ZIEMER, Defendant.

APPEAL by the defendant, John Herman Ernst Rust, from a judgment of the Municipal Court of the city of New York, borough of Brooklyn, in favor of the plaintiffs, rendered on the 30th day of November, 1910.


Herman Joerg, for the appellant.

James E. Finegan, for the respondents.


This is an appeal by the defendant from a judgment of the Municipal Court in the borough of Brooklyn in favor of the plaintiffs in an action brought to enforce a mechanic's lien against real property owned by the defendant Rust. The pleadings were in writing. The facts established at the trial were as follows: The defendant Rust owned two houses known as Nos. 167 and 169 Bedford avenue in the borough of Brooklyn; on or about June 15, 1909, he received from the bureau of buildings in the borough of Brooklyn a notice in writing

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that he maintained on said premises a violation of the Building Code of the city of New York, in that 'the soil line from water closets in corner house is extended and connected to house drain of adjoining premises which is contrary to permit 2020 A/08. Violation Sec. 43 and 45.' This notice then provided, in part, as follows: 'You are required to provide separate ex. heavy cast iron house drain for each house.' With Rust's authority, sometime in December, 1909, his wife took this notice to one Augusta Ziemer, who was doing business in Brooklyn as a 'Tinsmith and Plumber' and requested an estimate on the cost of doing the work required by the 'violation' notice. Mrs. Ziemer stated that she had a man to do the plumbing work, and after some negotiations a contract was entered into between Mrs. Ziemer and Rust, through his wife, for the work specified in the notice aforesaid at the cost of $240. Mrs. Ziemer sublet this plumbing work to the plaintiffs at a cost of $220. The plaintiffs entered upon the performance of the work, and when it was half done, Rust paid Mrs. Ziemer the sum of $120 on account of the contract price. The plaintiffs claimed to have performed completely their contract with Mrs. Ziemer, and seek to enforce against Rust's real property a mechanic's lien for the sum of $120, which they claim remains unpaid to Mrs. Ziemer by Rust. There is no dispute that Rust has not paid Mrs. Ziemer the remaining sum of $120. He disputes the plaintiffs' right to a mechanic's lien on two grounds, as follows: (a) That Mrs. Ziemer has not performed her contract; (b) that Mrs. Ziemer, not being a 'licensed plumber,' could not recover under her contract though she had performed it, and consequently there was nothing due under said contract to which a lien in favor of the plaintiffs could attach. It appears without question in the case that the plaintiffs did not put in 'separate ex. heavy cast iron house drains for each house.' When they started in with their work they found one of the houses connected with the sewer in the street by an earthenware drain, to which was connected the drain from the other house. They disconnected the drain from the one house and connected that house with the sewer by an iron drain, but they left the original earthenware drain undisturbed so that, as a result of their work, one house was connected with the sewer

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by an earthenware drain and the other house by a cast iron drain. They claim full performance of their contract with Mrs. Ziemer on the ground that such contract called on them, not to put in two separate sewers, but simply to remove 'the violation' which had been filed against the property, and that said 'violation' had been removed when they finished the work. It appears that a 'violation' notice had also been given by the tenement house department of the city of New York, but this notice was based upon the connection of the drains of both houses as a violation of certain provisions of the Tenement House Act, but contained no provision as to a 'separate ex. heavy cast iron drain for each house.' Concededly both 'violation' notices were dismissed by the respective city departments, and if the contract between Rust and Mrs. Ziemer simply called for a removal of these 'violations' it was performed fully by the plaintiffs. The difficulty is that Mrs. Ziemer herself, called as a witness for the plaintiffs, admits that the negotiations between Mrs. Rust and herself had relation to 'two new sewers' as provided in the 'violation' notice from the building department, and the contract for the work to be done was made with that relation as between Mrs. Ziemer and Rust. If this be so, then, though the plaintiffs may have performed their contract with Mrs. Ziemer, they have not performed her contract with Rust, for they have put in but one new sewer and but one separate heavy cast iron house drain. Under these circumstances, nothing became due from Rust to Mrs. Ziemer to which the plaintiffs' claim of lien may attach. As to the further defense of Rust, a similar difficulty arises against the plaintiffs. Mrs. Ziemer unquestionably held herself out as a 'Tinsmith and Plumber.' Rust's contract with her for the plumbing work in question was for the doing of a specific job of plumbing at a price based upon the extent of that work. As she was not a 'licensed plumber,' she could not recover for the work so done, if she had done it herself through her own employees. (General City Law [Consol. Laws, chap. 21; Laws of 1909, chap. 26], § § 40, 44, 45, 46.) Is the situation changed by the fact that she did it through sub-contractors who were licensed plumbers? It has been held in Bronold v. Engler (194 N.Y. 323) that the former General City Law (Laws of 1900, chap. 327, § § 45, 46), which was similar

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to the statute in question, applies to a case where persons, not licensed as master plumbers, but carrying on the trade or business of master plumbers, enter into a contract for plumbing work, even where such persons employ as their manager a duly licensed plumber, under whose supervision the contract is performed. The court, while so holding, declared: 'We do not say that any one, not a master plumber, making a contract which provides to some extent for plumbing work, would fall within the inhibition of the statute. A builder might contract to erect and complete a house or other structure including the plumbing work for a gross sum and for that purpose he would have the right to employ a licensed master plumber to do the plumbing work. He would in such case in no fair sense be conducting the 'trade, business or calling' of a master plumber. It would be the mere incident of a larger work. In this case, however, the trade of a master plumber is the very business or trade which the plaintiffs hold themselves out as pursuing and, therefore, falls within the inhibition of the statute.' Such is the situation at the case at bar, although it was proved that at the time the work in question was being done, Mrs. Ziemer was also doing some tinsmith work for Rust, but the contract for such work was entirely distinct from that relating to the plumbing work, so that both species of work were not done under a general contract for a gross sum.

In Putnam v. Siravo (140 A.D. 194) this court upheld a complaint in which it was sought to foreclose a mechanic's lien for labor and material for plumbing work done by a sub-contractor who was a licensed plumber, but under a contract between the defendant and the plaintiff, who was not a licensed plumber. In that case, however, the contract was a general contract for the installation of plumbing, heating and electric light apparatus for a gross sum for all the work so contracted for. However general the language of the opinion, it was not intended therein to go beyond the limits suggested in Bronold v. Engler (supra). If, however, Mrs. Ziemer could not recover under her contract with Rust, because it violated the statute, it is difficult to see in what better position the plaintiffs can find themselves. Under the Lien Law, the lien of a sub-contractor attaches to 'the

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sum earned and unpaid on the contract at the time of filing the notice of lien, and any sum subsequently earned thereon.' (Lien Law [Consol. Laws, chap. 33; Laws of 1909, chap. 38],§ 4.) The general rule is that a sub-contractor, seeking to enforce a mechanic's lien against real property, must show that there is a balance due from the owner to the original contractor to which the lien may attach. ( Butler v. Aquehonga Land Co.,86 A.D. 439; Van Clief v. Van Vechten,130 N.Y. 571; Brainard v. County of Kings, 155 id. 538.) It would appear, therefore, where, because of the inhibition of the statute, nothing could become ...

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