
    William Smith and another v. Henry Coe, impleaded with Joseph Naylor.
    Where the defendant’s liability depends entirely upon the fact of his indebtedness to a third person, and that is the issue, it is not necessary for the judge who tries the cause to state in his decision the finding of any fact other than the existence of the indebtedness; it seems,
    
    That, in such a case, is the, fact from which the legal conclusion of • the defendant’s liability to the plaintiff flows. ,
    In an action under the mechanics’'lien law, to enforce a lien against a building in the city of New York for materials furnished to the contractor, when the fact of. the indebtedness is found, the question of law arises whether by reason thereof the owner is liable to the plaintiffs.
    Where, in such a case, the judge finds as matter of fact that at the time the lien was filed there was due from the owner of the building to the contractor a larger sum than is demanded by the plaintiff, and as a conclusion of law he finds that a specified sum is due to the plaintiff, for which he has a lien on the premises, the conclusion of law is correct.
    The appeal alone does not bring up the question whether all the material , facts necessary to sustain the legal conclusion are contained in the finding of the judge.
    If the plaintiff wishes to have a finding of controverted facts between the defendants stated in the decision of the judge, he should apply to the court or judge to have the facts found, in respect to those questions, stated in the decision.
    He may apply to have the findings inserted and stated as the findings of fact, if there ismo statement of the fadts found;’ or that the facts which are found shall be stated in the decision.
    He cannot lie by and avail himself, on appeal, of the mere omission to make a statement of all the facts which he may regard as necessary or material. The presumption is that the judge found all the facts which are necessary to sustain the conclusion of the existence of the indebtedness; whether that conclusion is to be regarded as one of fact or of law.
    
      Appeal from a judgment of the Mew York Common Pleas.
    
    The action was brought to enforce a lien against a building in the city of New. York, belonging to the defendant, Coe, for materials furnished by the plaintiffs to Joseph Naylor, the contractor, who erected the building and used the materials in constructing the same. The proper notice and papers required to effect a lien were duly filed on the 24th of September, 1857, and served on the defendants, requiring them to appear, and have an accounting in respect to the amount due from the defendant, Coe, to Naylor. An order was duly entered that issue be joined between the parties. The plaintiffs, in their complaint, claim that the defendant, Coe, contracted with the defendant, Naylor, to erect and construct the ‘house in question, and that the plaintiffs furnished labor and materials to Naylor, at his request, which were used in the building, to the amount of $1,737.53; and that at the time of filing their lien there was an equal or greater amount due from Coe to Naylor on account of said building. The defendant,' Coe, in his answer admits that he contracted with Naylor to erect the said building for the sum of $14,000, and that he subsequently made a further contract with Naylor to erect an additional story for the sum of $5,500. He further alleged that before the filing of the lien he had paid Naylor the whole amount of $19,500, besides the additional sum of $3,563.76 for extra work on the- building, which was the full sum due; and that nothing was due Naylor at the time the lien was filed. He further alleged that the last payment was made for extra work on the 29th- of August, 1857, and that on that day Naylor abandoned the job, and did not complete his contract, which the plaintiff had been compelled to complete at an additional expense of $1,500. The cause was tried before Daly, F. J., without a jury. On the trial two written agreements were produced, signed by Naylor, by the first of 'which, dated May 28, 1857, Naylor agreed to erect the building as per plan and specifications, and make any alterations which might be suggested by Coe, provided the additional expense of the alterations did not exceed $300, and finish the same under the directions of Coe in a workman-like manner, for $14,000. By the second contract, dated July 7th, 1857, Naylor agreed to make an additional story to the building and finish the same in a workman-like manner, for $5,500, making the whole cost $19,500, as specified in the last contract. Naylor, who was a witness for the plaintiff, testified that he constructed the building not according to the original plan but wholly under the directions of Coe, and that the difference in the cost between the building first contracted to be built, and the building as finished, was about $12,000, on account of changes made from the original contract. That he had received over $23,000, and that there is still due him over $9,000. He admitted that he did not entirely complete the building, although ho denied that he abandoned it. He also admitted signing a receipt which was produced by the defendant, Coe, dated August 17, 1857, by which he acknowledged receiving previous to that day. $19,500 “ in full settlement for building store, corner East and Cherry streets, as per contract.'-' He also admitted, that he had testified on a previous occ.% sion, on proceedings supplementary to execution against him, as follows: “I have been Mr. Coe’s superintendent of building; I was to build for a certain amount, $19,500; he was to pay the bills; and anything less which I should-make. It has already cost between twenty-three and twenty-four thousand dollars. I have hopes he will givfl me something for my trouble, but he has not agreed to de so.” He explained generally the nature and extent of tho» changes from the original plan, and estimated the expense of the whole structure at about $31,000.
    The evidence on the part of Coe tended to show that ha had paid about $26,000 befóre the filing of the lien, and that Naylor agreed to accept- $22,500 for all demands fov building and extra work, which had all. been paid him before such filing; and that he afterwards abandoned the work leaving it unfinished. The facts that the work was not finished by Naylor but was finished by the defendant, were undisputed. There was no dispute as to the quantity and value of the materials furnished by the plaintiff.
    The judge found “as matter of fact, that on the 24th of ¡September, 1857, the day the lien in this case was filed, there was due from the defendant Coe to the defendant Naylor a larger sum than the plaintiff’s demand in this case. And as a conclusion of law that there was due to the plaintiffs the sum of §1,737.23, with interest from the 20th of August, 1857, for which sum the said plaintiffs had a lien upon said premises.” The defendant Coe excepted to the findings of fact and conclusions of law respectively. Judgment was entered accordingly, from which the defend- • ant Coe appealed to the general term of said court, where the judgment was affirmed, and he now brings his appeal to this court.
    
      J. H. Reynolds, for appellant.
    
      J. L. Jernegan, for respondent.
   Johnson, J.

It may be questioned, I think, in a case like this, where the. defendant’s liability depends entirely upon the fact of his indebtedness to a third person, and that is the issue, whether it is necessary for the judge who tries the cause to state in his decision the finding of any fact other than the existence of the indebtedness. That, in such a case, is the fact, from which the legal conclusion of the defendant’s liability to the plaintiff flows. In ordinary actions between debtor and creditor, the question of the indebtedness of the defendant to the plaintiff is rather a question of law, depending upon antecedently established facts, than a question of fact. In such.a case the conclusion of the indebtedness embraces the entire issue of fact and of law. Not so here. When the fact of the indebtedness is found, the question of law arises whether, by reason thereof, the defendant is liable to the plaintiff. This was evidently the view of the learned judge who tried the cause, and I am inclined to the opinion that he was quite correct.

But if we were to. hold that what the judge' has designated as a fact found, was in reality but a conclusion of law, and that his decision contained no finding of facts, I do not see how that is to aid the appellant. That is no ground for the reversal of a judgment, unless, perhaps, in a case where there was no evidence upon which any fact could have been found to justify the legal conclusion and the judgment. The appeal alone does not bring up the •question whether all the material facts necessary to sustain the legal conclusion are contained in the finding of the judge. Viele v. Troy & Boston Railroad Company (20 N. Y. R. 184), was a case where there was no statement oi any finding of facts, and this court held that nothing was to be presumed against the correctness of the judge’s deci sion from that circumstance, but that the party obtaining the judgment in such a case was entitled to that inference, from the facts proved, which was most favorable to him. It is not in itself a defect which affects the' validity of the judgment. If the appellant wished to have a finding of the controverted facts, between the defendants, Coe and Naylor, stated in the decision of the judge, hjs course* obviously was to apply to the court or judge to have the facts found in respect to those questions stated in the deci sion. He might have applied to have the findings, as he now insists they ought to have been, inserted and stated, as the findings of fact, if there was no statement of the facts found, or that the facts which were found should be stated in the decision. He can not lie by, and avail himself of the mere omission to make a statement of all the facts which he may regard as necessary or material on. appeal. The presumption is that the judge found all the facts which are necessary to sustain the conclusion of the existence of the indebtedness, whether that conclusion is to be regarded as one of fact or of law. And upon referring to the opinion of the judge who tried the cause, at general term, we see that he found a state of facts, from the evidence, which would abundantly sustain the conclusion of indebtedness. It can not be pretended that the case is entirely destitute of evidence tending to prove those facts. This court will not look into' the evidence, beyond that, to see what, in their opinion, the findings of fact ought to have been. The judgment is. therefore, right, and must be affirmed.

Davies, J.

This action was originally a proceeding instituted under the mechanics’ lien law relating to the city of New York, entitled “An act for the better security of mechanics and others erecting buildings and providing materials therefor, in the city and county of New York,.” passed July 11th, 1851. . Issue being joined pursuant to the provisions of the act, an action was thereupon pending, and the same came on to be tried before one of the judges of the New York common pleas, without-a jury. That issue was whether there was anything due to the contractor or builder, to whom the plaintiffs had furnished materials, from the defendant, the owner of the premises upon which the building was erected, and with whom the contract'was made, at the time the plaintiffs interposed their claim and filed their lien. The judge who tried the cause found,- as matter of fact, that on the 24th of September, 1857, the day the lien in this case was filed, there was due from the defendant, Coe, to the defendant, Naylor; (the contractor,) a larger sum than the plaintiffs demand in this case; and as a conclusion of law he also found that there was due to the said plaintiffs the sum of $1,737.53, with interest from August 20th, 1857, for which sum the plaintiffs had a lien on said premises. This conclusion of law was undoubtedly correct, upon the facts found by the court. The judgment having been affirmed at the general term, this court has no power to review the finding upon this question of fact. We are to assume it was authorized by the evidence, and as there is no. point made that any evidence was improperly admitted or rejected, no question of law is presented for our consideration.. We can not examine the evidence for the purpose of determining whether it warranted the ■ finding of facts made by the court.

The judgment must be affirmed, with costs.

All the judges concurring, judgment affirmed.  