
    O’BRIEN v. McCarthy et al.
    (Supreme Court, General Term, Fourth Department.
    September 23, 1893.)
    1. Equity—Right to Juey Tetal—Waivee.
    The objection that a suit in equity cannot be maintained because defendant would be deprived of his right to a jury trial is waived where it is not raised until the beginning of the trial
    B. Same—Remedy at Law—Answer.
    The objection that there is- an adequate remedy at law must be raised by answer.
    8. -Payments—Application.
    Under separate contracts to erect two buildings on neighboring lots, forming a single block, under a single plan of an architect, there was evidence that payments were made by one of the parties on estimates of the architect made under the contracts as a whole, and that the payments amounted to what plaintiff was entitled to at the time on the whole work; that the payer stated that he was paying the bills until the other owner could make a loan, the latter being payer’s nephew, whom he desired to assist in building the block. Held, that the payments were properly applied in equal proportion on each contract.
    Appeal from judgment on report of referee.
    Action by Thomas O’Brien against David K. McCarthy and another, as executors, etc., of James A. O’Hara, deceased, impleaded with William O. Fiske and others. The action was to foreclose a mechanic’s lien against Fiske, From that part of the judgment which adjudges that of the sum of $3,000, paid by James O’Hara in his lifetime to the plaintiff, $1,500 was properly applied by plaintiff upon a contract between him and the defendant Fiske, defendants appeal.
    Affirmed.
    Argued before HARDIN', P. J., and MERWIN and PARKER, JJ.
    Louis Marshall, for appellants.
    C. G-. Baldwin, for respondent.
   MERWIN, J.

On the 21st August, 1889, the defendant William C. Fiske, being the owner of a lot on Madison street, in the city of Syracuse, made a contract with the plaintiff, by which the plaintiff agreed to perform certain kinds of work, and furnish the materials therefor, in the erection of a building or block on said lot. The consideration was $6,200.16, and payments were to be made 85 cents on the dollar on estimates of the architect as the work progressed. James A. O’Hara owned a lot adjoining Fiske’s on the same street, and he at the same date made a similar contract with plaintiff, the consideration being $5,498.84, and payable in the same way. These buildings, forming together a single block, were constructed pursuant to a common or single plan, the respective portions being substantially alike, excepting a slight difference in the shape and size of the lots. The specifications for the whole were made by the architect, Mr. Carroll, as a single plan, and in pursuance of a common design by the said O’Hara and Fiske to erect a uniform and similar building; and the block was connected by partition walls under the same plans and specifications, and was erected at the same time, and by the same parties as builders and contractors. The plaintiff, in pursuance of his contracts, went on and furnished labor and materials, the work upon each part going on simultaneously, and the architect from time to time made estimates upon the work in bulk, without reference to the work performed on either part. These estimates were reported to O’Hara, and he made payments thereon to plaintiff to the amount of $3,000, the last payment being December 21, 1889. O’Hara died on 26th December, 1889. On the 24th October, 1890, the plaintiff filed a notice of mechanic’s lien on Fiske’s part of the real estate for a balance due on Fiske’s contract, and in this notice it was stated that Fiske claimed that he should be credited with $1,500 of the amount paid by O’Hara. This action to foreclose such lien was commenced November 21, 1890, and in the complaint the claim of Fiske as to these payments was stated. -It is also stated that the executors of O’Hara are made parties, in order to determine whether payments should be applied as claimed by Fiske. The referee found that $1,500 of the amount paid by O’Hara was paid by him on Fiske’s contract, and was so received and credited by plaintiff, and that this money was furnished to and paid for Fiske by O’Hara.

The appellants claim that this action cannot be maintained in equity, to determine whether or not this money was or should be applied on Fiske’s debt, on the grounds that the appellants would thereby be deprived of the right of trial by jury, and the plaintiff has an adequate remedy at law. The appellants in their answer do not allege that there is an adequate remedy at law, and they are not therefore in a position to raise the question. Town of Mentz v. Cook, 108 N. Y. 508, 15 N. E. Rep. 541. Besides, they claim in their prayer for relief that this very question as to applicability of the /payments be adjudicated upon. No question as to their right of trial by jury was raised until after the trial was entered upon, and a witness for plaintiff sworn and examined. By this delay the defendants waived their right to a jury trial, if they had any such right. Kenney v. Apgar, 93 N. Y. 539. The action as to the payments in controversy was in the nature of an interpleader, and I see no good reason why it could not properly be disposed of in the present action.

The appellants further claim that the finding of the referee that O’Hara intended to have his payments to the extent of $1,500 apply on Fiske’s contract, and that they were so made by O’Hara and received by plaintiff, is not sustained by the evidence. The payments, aggregating $3,000, were five in number. There is evidence tending to show that each payment followed and was based upon an estimate of the architect made upon the work under the two contracts as a whole, and that each payment was the amount that the plaintiff was entitled to at that time on the whole work. Statements are shown to have been made by O’Hara that he intended to foot the bills himself, that he was paying the bills on the block until such time as Fiske could make a loan. Fiske appears to have made no payments before O’Hara’s death. The work upon the two parts went on together. There was but one architect, and he was employed by O’Hara. There was but one plan, and the separation of the contracts was treated as matter of form. Fiske was the nephew of O’Hara, and there is evidence that O’Hara said he was going to assist his nephew in building the block. It is not likely that O’Hara intended to pay more than was due on his own contract, and yet this apparently is what he did if the appellants’ theory is correct. The plaintiff, in receiving an amount equal to what was due on both contracts as a whole, upon an estimate on the whole, had a right to believe that he was only receiving what was due him, and that he had a right to apply, as he testifies he did apply, one-half on each contract. Presumptively, upon the evidence, the work under each contract was substantially equal.

The evidence I think authorizes the conclusion -that O’Hara intended to have his payments apply on Fiske’s contract equally with his own, and that, in effect, they were so made by 0’Ha.ra, and received by plaintiff. It would follow that the conclusion of the referee should not be disturbed.

Judgment affirmed, with costs. All concur.  