
    HOFGESANG v. MEYER.
    
      City Court of Brooklyn; General Term,
    
    
      October, 1876.
    Mechanics’ Lien.—Pleading.
    Under the Kings and Queens counties mechanics’ lien law (X. 1863, p. 947, c. 478, § 1) a payment found to have been made by collusion, for the purpose of avoiding the provisions of the act, though not found to have been made in advance of the terms of the contract,—is ineffectual against the lien.
    
    The fact that this objection was not alleged in pleading, does not avail on appeal, if the record does not show that it was taken at the trial.
    Appeal by defendant from a judgment upon a report of a referee.
    George Hofgesang, the plaintiff, began this action . against Ludwig Meyer and George Stein, the defendants, to foreclose a mechanics’ lien, filed April 23, 1874, in the office of the clerk of Kings’ county, pursuant to the Kings and Queens county mechanics’ lien law {L. 1862, p. 947, c. 478), for certain mason and excavation work performed by plaintiff for Meyer, as contractor, on certain land in the city of Brooklyn, owned by defendant Stein.
    The issue was whether the contractor had been paid in full at the time of filing the lien.
    The referee found that Stein was the owner, Meyer the contractor, and Hofgesang the sub-contractor; that the plaintiff contracted with Meyer, and had completed the contract; that on April 23, 1874, there was an unpaid balance due plaintiff thereon of $100; and that he made, served and filed a notice of lien on that day.
    
      He then says:
    “7th. And I do further find, that on the 20th day of April, 1874, in advance of the completion of the work by plaintiff, the defendant, Stein, did improperly and collusively, and in disregard of the rights of the plaintiff, pay to the defendant Meyer, the sum of six hundred dollars, being the amount of the contract between said Stein and said Meyer, said payment being made for the purpose of avoiding the provisions of the mechanics’ lien law.”
    “I find as conclusions of law that the plaintiff is entitled to judgment for the amount of said lien, and interest thereon from the 23rd day of April, 1874, amounting in all to the sum of one • hundred and fourteen dollars ($114.00), together with the costs in this action; and also that said lien is a valid and subsisting lien on the premises in said complaint mentioned, to the extent of the right, title and interest of the said George Stein, existing at the time of the filing of said notice of lien, and that the plaintiff is entitled to a judgment for the sale of the interest of said Stein, pursuant to the statute in said cases made and provided, and judgment is hereby ordered accordingly.”
    The defendants excepted to the seventh finding of fact; and also to the conclusions of law, on the ground that upon the facts found the conclusion of law does not follow.
    
      D. C. Van Cott, for appellants,
    
      N. P. O’Brien, for respondent.
    
      
       for the somewhat similar provision in the general act, see L. 1873, p. 744, c. 489, § 3; in the Rensselaer county act, 1 X. 1866, p. 9, c. 778 of 1865, § 3; in the Buffalo act, 3 L. 1871, p. 1977, c. 873, §3.
    
   Reynolds, J.

The only question in this case is whether the findings of fact by the referee sustain his conclusions of law. The lien was filed, on April 23, 1874, against the defendant Stein as owner, and defendant'Meyer as contractor. The referee finds that Stein on April 20 paid to Meyer the whole contract price of his work; that such payment was made improperly and collusively, in disregard of the plaintiff’s rights, and for the purpose of avoiding,the provisions of the mechanics’’ lien law.

The lien law provides, in substance, that if the owner shall pay any money on any contract for building, &c., “by collusion, for the purpose of avoiding the provisions of this act, or in advance of the terms of any contract,” such payment shall be ineffectual against demands made in pursuance of the provisions of said act (Laws of 1862, ch. 478, § 1).

The appellant claims that such provision does not reach the plaintiff’s case, because the referee has found, not that the payment was made in advance of the terms. of the contract, but in advance of the completion of the worJc. Conceding this objection to be well taken, the report of the referee still brings the case within one of the alternatives specified in the section referred to. Oru the subject of payment by collusion, for the purpose of avoiding the provisions of the act, the finding is in substance equivalent to the language, of the statute, and his conclusion of law necessarily followed.

The appellant seeks to avoid this result on the ground that the fact there found was not in. issue. It is true that it is not so alleged in the complaint, but as no evidence or exceptions are returned (save the exceptions to the findings) we must presume that the question was tried without objection. If objection had been, raised upon the trial, it would have been a proper case' to allow an amendment of the complaint, and in furtherance of justice such amendment would now be-allowed if necessary.

The judgment should be affirmed with costs, of the.appeal.

McCue, J., concurred..  