Opinion
October, 1896.
Judgment affirmed, with costs. —
This is a suit to foreclose a mechanic's lien, in which the plaintiff was successful at the Special Term. The plaintiff claimed compensation under a contract for materials furnished and labor performed in building a crib bulkhead in the city of Yonkers for the Ludlow estate, which designation applied to James B. Ludlow, Annie L. Winters and the defendant, Harriet F. Van Zandt, who were the equal owners, as tenants in common, of the land upon which the crib bulkhead was built. The principal question of fact litigated upon the trial was whether Mr. James B. Ludlow, with whom the contract was actually made, had any authority to bind the defendant. The learned judge at Special Term found that he had such authority, and we think there is sufficient evidence to sustain this finding. The only other point of importance which the case presents relates to the effect of certain payments made by the other two parties to the contract, Mr. Ludlow and Mrs. Winters, in composition of the plaintiff's claim against them. (Code Civ. Proc. § 1942.) One-third of the sum payable under the contract was to be paid when the work was done, and the balance within one year thereafter. Some time after the completion of the work, Mr. Ludlow paid his one-third and Mrs. Winters paid her one-third. The next day, Mr. Ludlow paid $1,000 and Mrs. Winters paid $1,000 to the plaintiff in order to procure a discharge of his claim against them, and received instruments of acknowledgment which amounted to releases of their indebtedness under section 1942 of the Code. The defendant insists that, inasmuch as these payments of $1,000 each, together with the sums previously paid by Mr. Ludlow and Mrs. Winters, amounted to more than one-third of the contract price, the plaintiff had received more than was due him at the time of the commencement of this action, and, therefore, the complaint should have been dismissed. This argument ignores the purpose for which the payments of $1,600 each were made. The joint debtors thereby simply sought to compound the claim against them, payable by its terms in the future. This they had just as much right to do effectively, under the Code, as they had to compound a claim previously payable. The composition thus effected did not change in any respect the rights of the plaintiff as against the joint debtor who did not participate in the composition. The judgment should be affirmed, with costs. All concurred.