Citations
- 156 A.D. 117
Full opinion text
Clarke, J.:
This was an action to foreclose a mechanic’s lien. This court having determined on an interlocutory appeal that the notice of lien was invalid (126 App. Div. 829), a jury was waived upon the trial and the case proceeded as an action for a personal judgment. By consent the claim between the Dunmore Realty Company and the plaintiff was settled and discontinued, so that the controversy is between the plaintiff and John L. Murray, the other defendants, sub-contractors, having stipulated that their right to a recovery depended wholly upon the success of the plaintiff.
. The Dunmore Realty Company was the owner of a certain lot with the building thereon in the. city of New York. It made a long term lease thereof to the defendant Murray. The plaintiff and Murray on August 16, 1906, executed a contract under seal by which the plaintiff agreed to provide all the materials and perform all the work for the construction,' alteration, improvement, completion and equipment of the building according to and as shown on the drawings and described in the plans and specifications prepared by Messrs. Buchman & Fox, architects. .
It was agreed “ That the work included in this contract is to be done under the direction of the said Architects and that their decision as to the true construction and meaning of the drawings and specifications shall be final;” that “No alterations shall be made in the work, except upon written order of the Architects; the amount to be paid by the Lessee or allowed by the Contractor by virtue of such alterations to be stated in said order. Should the Lessee and Contractor not agree as to ’the amount to be paid or allowed, the work shall go on under the order required above, and in case of failure to agree, the determination of said amount shall be referred to arbitration as hereinafter provided.”
The contract contained the usual provisions as to diligence, abandonment, delay, etc. The work was to be completed on or before December 1, 1906. The contract also contained the following clauses: “It is hereby mutually agreed between the parties hereto that the sum to be paid by the Lessee to the Contractor for said work and materials shall be * * * $84,500, upon the understanding that the following items' included in said specifications shall not exceed the sums set opposite thereto respectively, to wit, Steam Heating and Ventilation, $10,000; Elevator Work, $3,000; Plumbing Work, $8,000; Electrical Work, $8,000. And in the event that said items shall be done for less than said sums, then the Contractor shall allow deductions to the Lessee accordingly, and if such items should exceed the said amounts then such additional payments shall be due to the Contractor; subject to additions and deductions as hereinbefore provided, and that such sum shall be paid by the Lessee to the Contractor, only upon certificates of the Architects, as follows: In cash, the sum of $57,250, and the balance in two equal negotiable promissory notes at 6% interest and dated the day of final payment, upon the completion of said work as certified by the Architects, executed by said Murray to the order of the said Contractor and due in three and six , months after date respectively. The Dunmore Realty Company, the landlord of said premises, has agreed in its lease of said premises, to expend towards the alterations thereof the sum of at least $65,000, and in compliance herewith the sum of at least $30,000 shall be applied towards the payments of work hereunder and shall he disbursed in accordance with an agreement of even date herewith between said Company and Murray. The cash payment hereunder shall be made in installments as the work progresses,: upon the presentation to the Lessee of the written certificate of the Architects to the effect that such work has been done and of the proportionate value thereof. Fifteen per centum of the value of all work done and materials furnished shall be held back, however, and not certified until the Contractor has received, less such fifteen per centum, the total cash payable hereunder, when, upon a certificate from the Architects of! further amounts due, the Contractor shall receive further cash payment out of such fifteen per centum . so held back until he shall have received all the cash payable hereunder. No such certificate furnished by the Architects shall be payable until all sub-contractórs and material men have been paid f