
    Antonio D’Andre et al., Respondents, v. Joseph J. Zimmermann et al., Appellants.
    (Supreme Court, Appellate Term,
    June, 1896.)
    1. Appeal — Questions, not raised below.
    An objection that the bond given to discharge a mechanic’s lien was not assigned to the lienor, or" leave given to sue thereon, cannot be raised for the first time on appeal.
    3. Pleading — Complaint — Demurrer.
    A complaint on demurrer will be deemed to allege what can be implied by reasonable and fair intendment.
    3. Mechanic’s lien — Presumption of regularity of bond.
    The - fact that-the amount of the bond was fixed by the court and the- sureties approved after justification may be inferred from an approval of the bond.
    
      4. Contract — Performance.
    . Where there has Been á substantial performance of a contract, and some item of work has been accidentally overlooked, a recovery may ' be had for the contract price less the expense of completing the portion undone.
    5. Mechanics’ lien — Form of judgment — Appeal. ■ •
    An objection to the form of judgment in an action upon a bond given to discharge á mechanic’s lien is the subject of a motion, and cannot be raised for the first time on appeal.
    6. Same — Subsequent'liens in action by contractor.
    Where action is brought by the contractor on a bond given to discharge the lien, the judgment should provide for payment of the liens of laborers and materialmen from the recovery awarded.
    Appeal in mechanics’ lien case by the- owner and his two sureties on bond given on discharging the lien, from affirmance by the City Court, General Term, of a judgment in favor of the plaintiffs founded ‘on said lien.
    J. G; Elammer, for appellants.
    Irons & Todd, for respondents.
   McAdam, J.

The action was to foreclose a mechanics’ lien upon certain,real property belonging to the defendant Joseph J. Zimmermann, situate in Ninety-sixth street, between Golumbus and Amsterdam avenues, this ■ city. The lien was filed by the plaintiffs for $390.24, due for stone work done upon the property pursuant to a contract with Zimmermann, the owner, who was at the time erecting four houses upon the property. After the action' had been commenced the lien was discharged by order of the court upon the execution and approval of the statutory bond given by Jacob A. Zimmermann and George B. McEntyre as sureties, and they were thereafter brought in as parties defendant under an amended com-. plaint praying for relief against them as well as the owner. The five other defendants were made parties because they had filed liens against the property for work done by them thereon under employment -by the plaintiffs,, who became liable for their services.

The work for which, the plaintiffs filed their - lien was substantially performed, and the sum claimed by them as owing therefor, to the extent allowed -by the- court below, was satisfactorily established. So that nothing remains for us but to pass upon certain objections of a technical nature which have been urged against the recovery.

It is claimed that the complaint is defective in failing to allege any assignment of the bond by the county clerk, or any leave to sire on the same first had and obtained, as required by section 814 of the Code. The objection was not made by demurrer or otherwise, at or prior to the trial, where it might have been obviated, and cannot be raised for the first time upon appeal. Gerding v. Haskin, 141 N. Y. 520, and see cases collated in Baylies on New Trials, 188. No objection to the absence of proof upon the 'subject having been made at the trial, that was in like manner waived.

The complaint alleged the contract with Zimmermann, the owner, whereby he “ agreed to pay the plaintiffs for said stone work six cents per cubic foot for all the work so performed; ” and “ that the work done by said plaintiffs upon said contract was of the agreed price and value'of $390.24.” These allegations clearly mean that 6,504 cubic feet of stone work was done; for the amount earned as alleged is figured out in that way, and the facts will harmonize with no other conclusion. The defendants' by way of demurrer moved to dismiss the complaint upon the ground that the omission of an affirmative allegation that “ 6,504 cubic feet ” of stone work had been done made the pleading fatally defective. The court properly denied the motion, for a complaint on demurrer will be deemed to allege what can be implied by reasonable and fair intendment. Marie v. Garrison, 83 N. Y. 14; Lorillard v. Clyde, 86 id. 384; Olcott v. Carroll, 39 id. 436; Wall v. Bulger, 46 Hun, 346; Milliken v. Tel. Co., 110 N. Y. 403.

It is next claimed that there was no allegation or proof that the court fixed the amount of the bond, or that the sureties were approved after justification. This objection was not specifically taken at the trial, and is, therefore, unavailing. If it' had been taken, it might have been inferred from the fact of the approval of the bond and the granting of the order discharging the lien that all the necessary prerequisites had been complied with, for it is generally presumed, in the absence of evidence to the contrary, that a court making an order acts upon proper proofs. Omnia praesumuntur legitvme facta donee probetxvr in contrarium. Miller v. Adams, 7 Lans. 131; aff’d, 52 N. Y. 409. Apart from this, the sureties are estopped from questioning the validity of the bond. Miller v. Youmans, 13 Misc. Rep. 63.

The court found that the plaintiffs failed -to perform brick work, to the extent, of $13.80, which they ought to have done under their contract, and deducted this sum from' the contract price. This circumstance is made the basis for urging that the plaintiffs did not complete their contract, and should not, therefore, have recovered anything. ' The'rule is that where there has been a substantial. performance of a contract, and some item of work has been accidentally overlooked, a recovery may be had for .the contract price less the expense of completing the portion undone. Smith v. Gugerty, 4 Barb., 614; Glacius v. Black, 50 N. Y. 145; Heckmann v. Pinkney, 81 id. 211; Nolan v. Whitney, 88 id. 648; Whelan v. Ansonia Co., 97 id. 293; Flaherty v. Miner, 123 id. 382; Van Clief v. Van Vechten, 130 id. 579; Miller v. Benjamin, 142 id. 615. It is where the contractor abandons his work (Crane v. Knubel, 34 N. Y. Super. Ct. 443; aff’d, 61 N. Y. 645), or there has been a willful or intentional departure from the contract, and the defects pervade the whole work (Phillip v. Gallant, 62 N. Y. 264; Woodward v. Fuller, 80 id. 316; Van Clief v. Van Vechten, supra), that the rule stated is. inapplicable. There is nothing to justify the inference'that the trifling amount of brick work left unfinished was other than an accidental omission,. fully compensated for by the allowance made at the trial.

The appellants also object that -the judgment is not in- form against the property; hence the sureties are not liable, the condition of the bond being, in the language of the statute, for the “ payment of any judgment against the property,” the bond merely talcing the place of the property, the same as moneys, paid into court, or securities deposited after suit brought to foreclose the lien. The court, in Morton v. Tucker, 145 N. Y. 248, in reviewing the act under which the bond was given, said: “ The. sureties in the bond intended, and must be understood as undertaking, to pay the amount which should be adjudged was due and owing to the plaintiffs, and which was chargeable against the property by virtue of their notice of lien. In other words, the condition was - for the payment of any judgment .which- might have been rendered against the property had not the bond been given.” The Court below found that the plaintiffs had acquired a valid lien upon the property, which lien was discharged by the bond; so that the event upon which the sureties were to Be bound happened, and they wére .properly charged. If the form of the .judgment' required any amendment in this respect it was the subject of a'motion in the 'court below; and cannot be heard, in the first instance. upon appeal, as will be seen by reference to the cases hereafter referred tó. ' .

It is also objected that the judgment was radically wrong as to the five subsequent lienors whose claims existed against the plaintiffs, and whose liens should by the judgment have been made payable out of the moneys awarded. Laws 1885, chap. 342, § 20, as amended by chap. 420, Laws 1887; and see Cronk v. Whittaker, 1 E. D. Smith, 647; English v. Lee, 63 Hun, 572. The evident object of the provision requiring that all lienors be made parties was that the court might determine the equities of each, to the end that on payment of the amount due by the owner and chargeable against the land, all ■ the liens might be discharged therefrom. But no provision was made in the judgment of the court below for the payment to these five lienors from the recovery awarded the plaintiffs by the appropriation of sufficient thereof to satisfy said liens; and in case the owner satisfied the recovery, these five liens would remain of record unsatisfied against his property. The omission was evidently an oversight, which might have been corrected by motion made for the purpose; and this practice ought to have been observed, instead of presenting the matter here as an original question. Buck v. Remsen, 34 N. Y. 385; People ex rel. Oswald v. Goff, 52 id. 434; Marble v. Lewis, 53 Barb. 437, and cases collated in Gerber v. R. R. Co., 3 Misc. Rep. 429.

We find no merit in the exceptions; substantial justice has been done; and if the plaintiffs will file a stipulation that the judgment be amended by providing that the . five liens filed by the workmen be first paid and discharged out of the moneys awarded to the plaintiffs (the same being moire than sufficient for the purpose), the judgment as modified will be affirmed, with costs.

Daly, P. J., and Bischoff, J., concur.

Judgment modified and affirmed, with costs.  