
    Thomas O’Brien, Resp’t, v. David V. McCarthy et al., Executors, Impl’d, App’lts.
    
      (Supreme Court, General Term, Fourth Department,
    
    
      Filed September 23, 1893.)
    
    1. Mechanic’s men—Fokeclosube—Application oe payments on oonTBACTS OF ADJOINING OWNEBS.
    In an action for the foreclosure of a mechanic’s lien, it appeared that defendant F. and one O., since deceased, were the owners of adjoining lots, and that plaintiff by separate contracts with each agreed to erect a block on said lots, 'the payments to be made on estimates of the architect as the work progressed. The buildings were constructed pursuant to a single plan by one architect. The architect, as the work progressed, made estimates on the work in bulk without reference to the work performed on either part, the estimates were reported to O., and he made payments thereon to plaintiff to the amount of $3,000, the last being December 21, 1889. O. died December 26, 1889, and in October, 1890, plaintiff filed, the lien on F.’s part for a balance due on his contract. In the notice it was stated that F. claimed that he should be credited with half the amount paid by O. Statements were shown to have been made by O. that he intended to foot the bills himself, F. being his nephew. The amount paid by O. was more than due on his contract,.and plaintiff applied half to each contract. Held, that a finding, that O. intended to have his payments applied on F.’s contract equally with his own was proper.
    2. Same.
    Such action, as to the payments by O., was in the nature of an inter¡pleáder, and was properly disposed-of in the action to .foreclose the-lien.
    
      Appeal from that part of a judgment entered in Onondaga county on 28th April, 1892, which adjudges that, of the sum of $3,000 paid by James O’Hara in his life time to the plaintiff, $1,500 was properly applied by plaintiff on a contract between him and the defendant William O. E'iske.
    The action is for the foreclosure of a mechanic’s lien, and was tried before a referee and his findings and report were confirmed by the court and judgment entered as above indicated:
    
      Louis Marshall, for app’lts; C. G. Baldwin, for resp’t.
   Merwin, J.

On the 21st August, 1889, the defendant, William 0. 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 eighty-five 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 an 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 E'iske as to these payments is 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; 13 St. Rep., 843. 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 Fisk’s contract equally with bis own, and that, in effect, they were so made by O’Hara and received by plaintiff. It would follow that the conclusion of the referee should not be disturbed.

Judgment affirmed, with costs.

Hardin, P. J., and Parker, J., concur.  