
    Mechanics’ and Traders National Bank, Resp’t v. Cornelius J. Winant, App’lt.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed June 19, 1888.)
    
    1. Contract—Provision giving right to rile notice of lien—Must BE STRICTLY COMPLIED WITH TO PERFECT LIEN.
    The Mayor, etc., of the city of New York entered into a contract with a
    ' party for regulating, etc., certain sidewalks on one of the avenues in the said city. It was therein provided that the contractor should he paid for the work in monthly installments of seventy per cent of the value thereof and that the city should retain thirty per cent of the amount claimed under the contract. It was among other things further provided that all persons having done work and furnished materials under the agreement by filing written notice within ten days after the completion of the work that any balance remained due and unpaid, might have a lien against the sum so retained by the comptroller. Held, that a person having done work or furnished materials under the agreement must in order to obtain a lien against the fund herein retained by the comptroller, file his notice as directed thereby and that ignorance of the necessary procedure furnished no excuse for failure to do so.
    2. Costs—Separate bill of costs against several defendants is UNAUTHORIZED.
    A judgment awarding a full bill of costs to a plaintiff against each of two defendants is unauthorized by the Code.
    Appeal from judgment entered upon the report of a referee.
    Thornton, Earl & Krendl, for app’lt; John H. Strahan, for resp’t.
   Van Brunt, P. J.

In June, 1875, the mayor, etc., entered into a contract with one Michael Gavin for regulating, etc., certain sidewalks on Lexington avenue in the city of New York. The contract contained a provision that Gavin should be paid for such work in monthly installments ■of 70 per cent of the value thereof and that the city should retain 30 per cent of the amount claimed under said contract; and by the contract Gavin agreed that he would furnish the commissioner of public works with satisfactory evidence that all persons who had done work and furnished materials under the agreement and had given written notice to the said commissioner before or within ten days after the completion of the work that any balance on such work and materials was still due and unpaid, have been paid or secured.

And it was further provided that in case such evidence be not given, such amount as might be necessary to pay the claims of the persons aforesaid should be retained from any moneys due the contractor under the agreement until the liabilities should be fully discharged or secured or such notice withdrawn.

The contractor Gavin began the work under such contract, and employed the defendant Winant to do work and furnish materials in and about the performance of the contract, which Winant did, and there was due to Mm at the time of the commencement of the action for such work and materials a balance of over $2,000. Gavin assigned to the plaintiff the moneys due and to grow due under said contract in November, 1875. In July, 1887, the defendant Winant filed notice of lien with the .comptroller for the amount due to him from Gavin. The plaintiff subsequently brought suit for the balance due upon Gavin’s contract, .and the defendant Winant was made a party because of the notice he had filed with the comptroller, and the principal contention between the parties was whether the defendant Winant had a lien upon these moneys.

The fact that Winant had done work and furnished materials in connection with' this contract, gave him no lien independent of some provisions of law or some arrangement between the contracting parties.

It appears by the terms of the contract that provision was made for the filing of notice of lien against the moneys remaining in the hands of the comptroller applicable to the payment of this contract, and that such notice should be given to the commissioner of public works. Therefore, if the defendant has served such a notice, then he would be entitled to be protected against the assignment made prior ■to the earning of this money by the contractor to the plaintiff.

That is the issue which was tried before the referee and the referee found that there was no proof that the defendant Winant ever filed his claim with the commissioner of public works according to the requirements of Gavin’s contract, .and we see no reason for interfering with this finding of fact upon an examination of the evidence in this case. It-appears from the answer of the defendant that all that he claims was that he filed a notice of lien either with the-commissioner or the comptroller; and it further appears, that only after the termination of the plaintiffs case and after the-attention of the defendant Winant and his counsel had been called to the fact that the filing of a notice with the comptroller was not a compliance with the contract, that-any evidence was attempted to be given showing a fifing of the notice required by the contract with the commissioner of public works. It was the opinion of the referee that the-evidence in reference to the filing of the notice with the-commissioner of public works was an afterthought and was insufficient to establish the fact and certainly his conclusion in this regard is supported by the appearances of the case, and as he was present and saw the witness testify, and the-circumstances surrounding his judgment should not be-lightly interfered with. It would appear that it was the-necessities of the case which recalled to the recollection of' the defendant the fact of his leaving some paper at the-office of the commissioner of public works. If an application was made as is stated by the defendant to an official in the department of public works and he was instructed to file it with the comptroller, that in no way affects the rights, of the parties. The witness says that was the first light he received and if that fight led him into darkness, it does not. affect the rights of the plaintiff. The defendant in attempting to fasten this lien on the fund was presumed to know the procedure which it was necessary to adopt. He can only obtain his lien by strictly following the requirements-of the contract by giving notice to the commissioner of public works, and that he does not seem to have done. He therefore established no right to participation in the fund according to the terms of the contract in question.

We think, however, that the referee was in error in the judgment which he settled and ordered to be by giving, separate bills of costs against the defendant, the mayor, and. the defendant Winant. The result of the judgment would be, that although one defendant paid the whole bill of costs, and all that the plaintiff could possibly claim, by way of costs resulting from this litigation, the plaintiff would still have the right to collect a precisely similar bill from the other defendant. It was the same trial and the same proceeding, and the entry of separate judgments giving full costs against each of the defendants, is utterly unwarranted by any of the provisions of , the Code, so far as we have-been able to ascertain.

We think, therefore, that the judgment, so far as it-awarded separate costs against the defendant Winant, is unfounded and should be reversed.

The judgment as modified should be affirmed without cost of this appeal.

Brady and Daniels, JJ., concur.  