APPEAL by the defendants, the Mack Paving and Construction Company and another, from a judgment of the Supreme Court in favor of the plaintiff and certain of the defendants, entered in the office of the clerk of the county of Westchester on the 26th day of July, 1910, upon the decision of the court rendered after a trial at the Dutchess County Special Term.
L. Laflin Kellogg [Alfred C. Petté with him on the brief], for the appellants.
Arthur M. Johnson, for the plaintiff, respondent.
Charles Trosk [Otto C. Sommerich with him on the brief], for the respondent Hazard Manufacturing Company.
William H. Harding, for the respondent Thomas F. Moore.
The action is brought to foreclose a mechanic's lien filed by the plaintiff for materials furnished to the respondent Thomas F. Moore, who was a sub-contractor under the appellant Mack Paving and Construction Company in the building of a sanitary trunk sewer and outlet in the Bronx River valley in the county of Westchester. The contract for the construction of the sewer was executed by the defendants constituting the Bronx Valley Sewer Commission, created by chapter 646 of the Laws of 1905, as amended by chapter 747 of the Laws of 1907, and the Mack Paving and Construction Company as general contractor. This contract was made in the latter part of 1907 or the beginning of 1908. The sub-contract between the main contractor, the said Mack Paving and Construction Company, and the defendant Thomas F. Moore, was executed in September following, such sub-contract relating only to the construction of a portion of the sewer. The plaintiff's lien was the first lien filed, and the defendants, other than the appellants and the members of the commission, are other lienors, whose liens, as well as the liens of the plaintiff, have been allowed by the judgment appealed from.
The respondent Moore abandoned his work on or about the 20th of March, 1909, under a claim made by him that he was not being paid under the sub-contract the full amount to which he was entitled as the work progressed. The judgment allows him his claim in full, including of course the claim of the plaintiff for the materials furnished him by the latter; and the main controversy relates to the question whether under the law and facts he was entitled to abandon the work and recover the amount allowed in the judgment. The solution of the question depends upon the construction to be placed on the terms of the original contract and the sub-contract.
By the original contract it was provided that payments
would be made to the contractor by monthly installments of eighty-five per cent of the estimated value of the work performed, provided the work is being prosecuted in conformity with the provisions of the contract as interpreted by the engineer, and by a final payment when the work shall have been fully completed and such completion shall have been duly certified by the engineer. The sub-contract referred to provides that the moneys to be paid to Moore shall be payable according to the terms and conditions of the original contract and shall be based upon the prices prevailing in the sub-contract, Moore to receive a payment whenever under the terms of the original contract the Mack Paving and Construction Company receives a payment, such payment to Moore being a proportionate amount of the money so received by the Mack Paving and Construction Company, proportioned in the ratio of the prices at which Moore is to do the work. The abandonment of the work by Moore was because of a belief on his part that the engineer was not allowing to the Mack Paving and Construction Company as large a sum in the approximate monthly estimates as he should have done. There is no claim, however, that the estimates were made fraudulently, in bad faith or by collusion or improper motive or conduct of any kind; and it was conceded that at the time he abandoned the work Moore had been paid in full the proper proportionate amount of the certificates rendered to the Mack Paving and Construction Company and of the money actually paid to that company in accordance with the monthly approximate estimates of the engineer. He testified at the trial on that subject as follows: 'Q. Did you think that the Mack Paving & Construction Company were not paying you the amount you were entitled to out of the certificates? A. No; I took their word for it. I presumed it was a correct copy; I never compared them. They said they were paying me all that they were getting certified for. I believed it. I believe it now.' It does not appear that the estimates of the engineer were based upon an erroneous construction of any provision of the original contract, nor was there an unreasonable refusal to furnish a certificate.
The payments to be made monthly were not ...