
    Catherine D. Vogel, Resp’t, v. Jacob Luitwieler, Impleaded, et al., App’lts,
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed April 12, 1889.)
    
    1. Mechanics’ liens — Who may secure lien — Mechanics’ lien act, Laws 1885, chap. 342, § 1.
    The defendant L. supplied certain paints to the sub-contractor to be used in the construction of a certain building which the plaintiff had the contract to build and finish. Held, that the defendant is embraced in that class of persons mentioned in the mechanics’ lien act, and who may by complying with the piovisions of the act secure a lien on the premises, although the material was supplied to a sub-contractor, and on his personal credit.
    2. Same—Who deemed sub-contractor—Priority—Mechanics’ lien act, Laws 1885, chap. 342, §§ 20, 21.
    That under the act the defendant is to be treated as a sub-contractor, and entitled to have his debt paid out of the amount due the plaintiff on her contract, before any sum can be retained by her out of the proceeds.
    3. Same — Where contractor and sub-contractor place liens — Effect of.
    Where the contractor and a sub contractor have each placed a lien on the property, there can be but one payment enforced from the owner, and that is limited to the amount due on his contract.
    4. Same—Substantial compliance deemed sufficient.
    A substantial compliance with the provisions of the act is sufficient for the validity of the lien or liens provided thereby, and to give jurisdiction to the court to enforce the same.
    5. Same—Right of lienor not made dependent on what.
    The right of the defendant to place a lien upon the premises as a security for his debt is not extinguished, nor is its validity dependent on the fact that the sub-contractor, to whom he furnished the materials, had been paid.
    
      Appeal from a judgment entered upon a decision entered at the Monroe special term, in an action to foreclose a mechanics’ lien created by and under chapter 342 of the Laws of 1885.
    The plaintiff entered into an agreement with Edward Wood, who was then the owner of the premises, to construct and finish a house to be located thereon, for the price of $3,070. Afterward Wood sold and conveyed the premises to the defendant, Forsyth, who assumed and agreed to perform the building contract.
    The plaintiff, on or about the twenty-eighth day of July,, completed her contract, and there was then due her thereon the sum of $635, and she also did extra work of the value of $225, under and in pursuance of the provisions of the building contract.
    On the 28th day of July, 1887, and within ninety days after the completion of the contract, the plaintiff filed a notice as required by the provisions of the said act, for the purpose of creating a lien on the premises. For the purpose of carrying out the said contract on her part, the plaintiff agreed with one Poppert to paint the building and furnish the materials therefor.
    The price she was to pay for the work does not appear by the findings. Poppert did the work and furnished the materials as agreed. He purchased the materials used in painting the house from the defendant, Luitwieler, and they were of the value of $225. The trial court found, as a fact, that he sold and delivered the materials to Poppert upon the sole credit of the latter, and they were charged by Luitwieler to said Poppert, in an account upon the books of Luitwieler, and that the latter knew when the goods were sold and delivered, that they were to be used in constructing the building on the premises.
    The complaint sets forth the fact that Luitwieler filed a notice of the lien, and then avers that the same is void and of no effect, and in form and substance the same does not comply with the provisions of the statute, and that he did not furnish the plaintiff, or the owner of the building, any goods, wares, or merchandise, and that neither the plaintiff; or the owner is indebted to him for any materials which he furnished in the construction of said building. The judgment demands that the plaintiff’s complaint be adjudged prior and superior to the lien of the defendant, Luitwieler. The trial court found, as a matter of law, that Luitwieler had no lien upon the premises, and directed that all the moneys due upon the contract be paid to the plaintiff.
    The judgment was entered in accordance with the findings. Luitwieler alone appeals from the judgment.
    
      Turk & Barnum, for app’lts; John J. Snell, for resp’t.
   Barker, P. J.

The first and principal question in the case is, Was the defendant Luitwieler who supplied the paints to Poppert, the sub-contractor, embraced in the class of persons mentioned in the mechanic’s lien act, who might secure a lien on the premises in compliance with the provisions of the law % Laws 1885, chap. 342. The first section provides that: “Any person * * * who shall hereafter perform any labor or service, or furnish any materials which have been used, or which are to be used in erecting a building on a building lot * * * with the consent of the owner, as hereinafter defined, or his agent, or any contractor, or sub-contractor, or any other person contracting with such owner as aforesaid, * * * may, upon filing the notice of lien prescribed in the fourth section of this act, have a lien for the principal and interest of the price and value of such labor and material * * * But in no case will such owner be liable to pay by reason of all the liens filed pursuant to this act, any greater sum than the price stipulated and agreed to be paid in such contract, and remaining unpaid at the time of filing such lien, or in case there is no contract, than the amount of the value of such labor and material then remaining unpaid, except as hereinafter provided.”

The facts found by the trial court bring the defendant Luitwieler within the terms of the act, and he, on complying with the other provisions of the act, could secure a lien on the premises, although the material was supplied to a sub-contractor and on his personal credit. It is one of the chief purposes of the law to secure persons who supply material which is used in the construction or finishing of the building erected on the lands of the owner, by giving them a lien thereon. Usually the question whether a lien has been created or not arises between the claimant and the owner of the premises. In the case now before us no one disputes the validity nor the amount of the plaintiff’s lien.

The owner does not interpose any defense, nor has he appeared in the action. He admits that he is indebted to the plaintiff under the building contract in the sum mentioned, and also that both the plaintiff and appellant have good and valid liens. When the building was completed, there was due aud unpaid on the contract the sum of $635. It is unnecessary, in disposing of the questions now presented, to take any notice of the amount due for extra work, as the appellant’s claim is less than the sum due the plaint-tiff by the terms of contract. The act provides for the foreclosure of liens, created in pursuance of its provisions, and all lienors prior or subsequent to the plaintiff’s lien may be parties to the action. The manner and form of instituting and prosecuting any such action to judgment, or an appeal from such judgment, shall be the same as in actions of foreclosure on real property, except as in the said act otherwise specially provided. Sections 7 and 8.

_ It also provided that all persons who have filed notices of liens, shall, by answer in the action, set forth the same, and the court in which such action is brought, may settle and determine the equities of all the parties thereto, and decide as to the extent, justice and propriety of the claims of all the parties to the action, and upon every counter-claim or set off alleged therein, to the extent of their respective jurisdiction.

In justice and equity, the owner is entitled to have the appellant’s lien paid and discharged out of the moneys due the contractor, and the act provides for a case like this with a view of protecting the owner from being compelled to make double payment, to secure a release of his premises from the liens placed thereon by contractors, sub-contractors, material men, or laborers. In section 20, there is a provision that all persons entitled to liens under the provisions of the act, except those who contract with the owner, shall be deemed sub contractors, and the court in the judgment shall direct the amount due sub-contractors to be paid out of the proceeds of sales before any part of such proceeds are paid to the contractor, and that all persons standing in equal degree as co-laborers, or the various persons furnishing materials, shall have priority according to the date of filing their liens, and where several notices or liens are filed for the same demand, as in case of a contractor including claims for workmen to whom he is indebted, and the lien by workmen, the judgment shall provide for the proper payment, so that, under the liens filed, double payment shall not be required, and in every case where different liens are asserted against property, the court in the judgment must declare the priority of such liens, and the proceeds of the sale of the property must be applied to each lien in the order of its priority. Sections 20 and 21.

By the very terms of the act, the defendant is to be treated as a sub-contractor, and is entitled to have his debt paid out of the amount due the plaintiff on her contract, before any sum can be retained by her out of the proceeds of the sale.

The equity of these provisions is manifest, and arises out of the fact that the person who furnishes the material has contributed the amount of his debt towards the completion of the contract, and such sum is embraced in the amount due the contractors, and secured by the lien which he placed on the property. Where the contractor and a sub-contractor have, as each may, placed a lien on the property, there can be but one payment enforced from the owner, and that is limited to the amount due on his contract, and the act justly provides, and the court cannot disregard its provisions, that the sub-contractor shall be first paid. As the sub-contractor would not be a proper party in an action t» foreclose a lien placed on the property by the contractor, unless he has secured a lien on the premises for his own security, the plaintiff may litigate with him the validity set up by the sub-contractor.

The fact is found, and the evidence supports the finding, that the appellant supplied material which was of the value set forth in the notice of lien, and the only other question left for inquiry is, whether the notice as filed is in substantial compliance with the requirements of the statute?

The only criticism made by the respondent as to the sufficiency of the notice is, that it does not state the nature and character of the material furnished by the claimant. We think that the notice may be regarded as á substantial compliance with the requirements of the fourth section, as between the claimant, who asserts the lien, and the plaintiff, who raises the question. If the material had been furnished directly to the plaintiff instead of his sub-contractor, we think it could be fairly said that an objection of this character would be without merit, as the contractor could not be misled by the omission.

The notice is required for the purpose of giving information to the owner, so that he may, upon inquiry, ascertain whether the material has been actually furnished or not, and the value of the same.

In this case we are unable to see how the plaintiff, the contractor, has been misled or can now be surprised because the nature and character of the material was not stated in. the notice. He engaged Poppert to do the painting and supply the materials, and the notice states that the materials, were furnished and used for the erection of the building in question; and that there was due from Leonard Vogel, who. was the plaintiff’s agent in making the contract to furnish the material, the sum of $225, the amount now claimed.

The contract for the construction of 'the building was; made in the name of Leonard Vogel, as agent, without disclosing that the plaintiff was in fact his principal, and in legal effect it was Vogel’s contract1 and not the plaintiff’s. The act itself declares that it is a remedial statute, and is; to be construed liberally to secure the benefits, interest and purposes thereof : that a substantial compliance with its provisions shall be sufficient for the validity of the lien or liens, provided thereby and to give jurisdiction to the courts to. enforce the same.

We are inclined to hold that as between the parties to-this appeal, the notice was a substantial compliance with. the act and that the respondent has not been misled to her injury by reason of the omission complained of. The case of Luscher v. Morris (18 Abb. N. C., 67) is not in point. The respondent makes the further point that it does not appear that the contractor is indebted to the sub-contractor Poppert for the work and labor and material furnished in painting the house, and for tnat reason the appellant did not establish a valid lien on the premises. We cannot assume that Poppert has been paid, and until the contrary appears it may be presumed that he has not been, as a liability once •created is supposed to continue until it is shown that it has been discharged. But if it appeared that Poppert had been paid for the work and labor which he performed, the right of the appellant to place a lien upon the premises, as a security for his debt, was not thereby extinguished, for the right was secured to him by statute, and its validity is not made to depend upon the question whether his vendee has been paid by the party with whom the latter contracted to ■do the work and labor. Such a construction placed upon the statute would contravene and defeat its express objects and purposes, and so far as it was intended as a protection for material men and laborers, it would enable the contractor and sub-contractor, by concert of action, to deprive them of the benefits of the statute.

The judgment should be modified by directing the payment of the appellant’s claim in the first instance out of the proceeds • of sale, and that the same be modified in other respects so as to comply with the views which we have •expressed, and as modified, the judgment is affirmed, with costs of this appeal to the appellant, to be paid out of the proceeds of the sale ordered to be paid to the respondent, and if they are insufficient, to be paid by her personally; the order to be settled by Barker; P. J.

All concur.  