
    Tradesman’s National Bank of Conshohocken, Respondent, Appellant, v. George C. Boldt, Sr., Appellant, Respondent, Impleaded with George C. Boldt, Jr., and Others, Defendants.
    Fourth Department,
    January 8, 1913.
    Mechanic’s lien—foreclosure—liability of husband of owner upon agreement by sub-contractor with contractor — filing — claim for extras —judgment.
    In a suit by the assignee of a sub-contractor for the foreclosure of a mechanic’s lien brought against the husband of the owner of property and a contractor it appeared that the former agreed with the latter for the construction of a building upon his wife’s lands. After the commencement of the work the owner died intestate, leaving her husband and two children. The sub-contractor quit work under orders from the contractor before the completion of the contract, and more than a year afterwards filed a lien and served a copy thereof upon the defendant husband. At this time there was mqney owing by the defendant to the contractor, which was subsequently paid upon the contractor giving a bond against t.he claim of the sub-contractor.
    Held, that since the notice of hen was not filed or served within the time required by statute, and since the defendant husband is not liable upon the contract made by the sub-contractor with the contractor, a personal judgment against both the contractor and the husband should be reversed as to the latter.
    A claim for extra work by the sub-contractor, the extras having been furnished at the request of the contractor and there having been no new contract between the husband and the sub-contractor, was not a sufficient ground for a personal judgment against the husband.
    Cross-appeals by the plaintiff, the Tradesman’s National Bank of Conshohocken, and the defendant, George C. Boldt, Sr., from a judgment of the Supreme Court, entered in the office of the clerk of the county of Jefferson on the 8th day of February, 1910, upon the report of a referee in favor of the plaintiff and against the defendants George C. Boldt, Sr., and J. Franklin Whitman Company, and dismissing the complaint as to the other two defendants.
    
      J. H. O'Brien, for the plaintiff.
    
      Joseph Atwell, for the defendant George C. Boldt, Sr,
   Kruse, J.:

The action is in form, for the foreclosure of a mechanic’s lien. The defendant George 0. Boldt, Sr., contracted with the defendant J. Franklin Whitman Company for the construction by that company of a building to be located upon his wife’s lands, known as Hart island, situate in the St. Lawrence river in this State. The plaintiff’s assignor was a sub-contractor under the J. Franklin Whitman Company for a part of the work. After the work had been commenced Mrs. Boldt, the owner of the lands, died intestate, leaving her husband and two children. The sub-contractor did not complete the work called for by its contract by September 7, 1903, as the contract required, but the referee found that the provision as to time of completion was waived. However, the work still being incomplete on December 9, 1903, the J. Franklin Whitman Company directed the plaintiff’s assignor to quit work, which it did on or before December 11, 1903.

The notice of lien was filed the 14th day of March, 1904, and also served on the defendant George C. Boldt, Sr., on or about March 11, 1904, by letter, as the referee finds. At the time of the filing and serving of the notice of lien there was owing by the defendant George C. Boldt, Sr., to the J. Franklin Whitman Company a sum in excess of $3,000, which was subsequently paid over to the Whitman Company by Boldt, Sr , upon his receiving a bond of indemnity against the claim of the plaintiff’s assignor.

The referee held that the notice of lien was not timely filed or served, but directed a personal judgment upon the claim of the sub-contractor, which had been assigned to the plaintiff, not only against the contractor, the defendant the J. Franklin Whitman Company, but also against George C. Boldt, Sr., and dismissed the complaint without costs as against the defendants George C. Boldt, Jr., and Clover Boldt, the children of Mrs. Boldt, who had died, as above stated.

I am unable to see upon what principle George C. Boldt, Sr., is liable to the plaintiff upon the contract made by J. S. Moser & Co., its assignor, with the J. Franklin Whitman Company. Boldt, Sr., was not a party to that contract. His contract was with the J. Franklin Whitman Company. It was the latter whom he promised to pay for doing the work upon the building. J. S. Moser & Co. were sub-contractors under the J. Franklin Whitman Company. It is true that the sub-contractor undertook to intercept what was due from Boldt, Sr., to the J. Franklin Whitman Company by filing notice of lien, but the notice was not filed or served within the time limited by the Lien Law (Gen. Laws, chap. 49 [Laws of 1897, chap. 418], §§ 10, 11), and the referee has decided that they have no lion. While Boldt, Sr., took back a bond of indemnity when he paid over to the contractor, to whom he was liable, that, I think, does not make him liable to the sub-contractor. He had a right to do that and it was very proper that he should do so, because it had not been established that the lien filed was not effective.

The claim for extra work done by the plaintiff’s assignor seems to stand upon the same footing as the rest. The referee finds that such extras were furnished at the request of the J. Franklin Whitman Company. There is no finding that there was any new contract made between Boldt, Sr., and the subcontractor. Even if the notice of lien had been effective, the lien would have been against the property, not against Boldt, Sr. He was not even the owner of the land. The property belonged to Mrs. Boldt, and apparently the title is now in her children, subject to the life estate of Boldt, Sr., as tenant by the curtesy. Of course, if the hen had been effective and Boldt, Sr., had then paid to the J. Franklin Whitman Company, he would not be permitted to urge that payment against the sub-contractor. But that is not this case.

The case of Terwilliger v. Wheeler (81 App. Div. 460), and similar cases cited by plaintiff’s counsel, do not, I think, sustain his contention that a personal judgment may be awarded against Boldt, Sr. That case holds that a personal judgment may be awarded in favor of a plaintiff against such defendants as are indebted to him. But, as has been seen, there is no finding in this case that Boldt, Sr., is indebted to the plaintiff on any facts from which such an inference may be found.

I think the judgment in favor of the plaintiff against the contractor, J. Franklin Whitman Company, was proper, but not against George C. Boldt, Sr. As to him the judgment should be reversed.

The plaintiff by its appeal challenges the amount of the judgment, contending that interest should have been allowed. I think the referee correctly decided that the claim was unliquidated and that the plaintiff was not entitled to the interest.

Personally I am of the opinion that no new trial should be awarded, but that the judgment as against George O. Boldt, Sr., should be reversed and the complaint as to him dismissed, especially in view of the amendment of 1912 to section 1317 of the Code of Civil Procedure. (Laws of 1912, chap. 380.) The plaintiff seems to rely entirely upon the findings made by the referee, to which its exceptions contained in the record are directed. No case was made and the evidence is not before us. But a majority of the court seem to be of the opinion that facts may be shown upon another trial which will make the defendant George 0. Boldt, Sr., personally liable. Possibly that may be so, at least for extra work (Mitchell v. Dunmore Realty Company, 135 App. Div. 583), and I am willing to yield to that suggestion. In that view, however, it may be well for. the plaintiff to amend its complaint by showing how the defendant Boldt, Sr., is liable and demanding a personal judgment.

The judgment should, therefore, be reversed as to George 0. Boldt, Sr., and a new trial ordered as to him, with costs to the appellant George 0. Boldt, Sr., to abide the event, and as to the other defendants the judgment should be affirmed, without costs.

All concurred; McLennan, P. J., in result only; Lambert, J., not sitting.

Judgment reversed as to George 0. Boldt, Sr., and a new trial granted as to him, with costs to George 0. Boldt, Sr., to abide event. Judgment affirmed as to the other defendants, without costs.  