Preusser v. Florence

Van Brunt, J.

— It is true that the referee before whom this cause was tried has reported that the work was substantially completed at the time of the commencement of this action, but how he has arrived at any such conclusion it is somewhat difficult to imagine, because the undisputed evidence is that the dumb waiter called for by Hart’s contract . was not put in until about the month of May, nearly two months after this action was commenced. It also appears that during the whole of the month of March and part of April, Hart was engaged in finishing up the job by building the stairs, and finishing and trimming the building. This evidence shows clearly that at the time of the commencement . of this action the last payment, which was the only one upon which the plaintiff’s lien could attach, was not due. Hpon this state of facts Hart could not have maintained any action to recover this payment, and it is difficult to see how the plaintiff can maintain the action, which rests solely upon Hart’s right to recover as against Florence.

The case of Smith agt. Brady (17 N. Y., 173) has established the doctrine that beforfe a contractor can maintain an action for money to grow due upon the completion of a contract, he must show that he has complied with the terms of his contract, and if he is not able to do this, no recovery can be had.

The principle established by that case has never been overruled, and, applied to the facts of the case at bar, shows that no action could have been maintained by Hart, the contractor, against Florence, the owner, at the time of the commencement of this action, because the work was not at the time completed.

It is not at all necessary to consider the question as to the effect of the payments made by Florence, the owner, to the sub-contractors on the 16th January, 1875, because the point first above discussed shows that the judgment must be reversed as to the defendant Florence, and a new trial ordered, with costs to abide the event.

Ordered accordingly. ■