Misc.] Supreme Court, July, 1900. Eugene Sweeney, for defendants Kelly & Dwyer. John J. O'Brien, for defendant Nolan. LAWRENCE, J. In this case, after re-examining the mass of contradictory testimony which was given upon the trial, I have reached the following conclusions: First. That the plaintiffs were not improperly obstructed or delayed by the defendant Fagen or his architect in the execution of the work agreed to be performed under the contract of October 13, 1898. Second. That the plaintiffs were not prevented by the alleged assault or assaults upon the plaintiff Charles V. McConologue from going on with or prosecuting the work under the contract aforesaid; that it is doubtful upon the evidence whether there was more than one collision between the architect Horenburger and said Charles V. McConologue, and that as to the one assault proven by the evidence it appears that the said Horenburger committed the same when asked to give a certificate that the first payment had become due, when in point of fact, it was not due, and that thereupon the plaintiff offered said architect money to give such certificate, which the latter, deeming it to be an insult, resented by taking the plaintiff by the collar and shoving him out of the door of the building. Of course, even the alleged insult did not justify the architect in committing an assault, but I am unwilling to hold that under the circumstances it can be held to have delayed or obstructed the plaintiffs in the performance of the work. The plaintiffs were not put in such peril as to justify them in abandoning the work and claiming to recover for the work done upon a quantum meruit. Third. The evidence in the case is extremely conflicting as to the manner in which the work done by the plaintiffs upon the building was performed, as to the speed with which it was prosecuted, and also as to the circumstances under which it was finally abandoned by the plaintiffs. It is, however, I think, shown by the preponderance of the testimony that the plaintiffs could not have completed their work within the few working days which remained to them of the forty-two allowed to them by the contract. I am also satisfied that the plaintiffs had not made, at the time the work was abandoned, arrangements for the supply of a sufficiency of material or of workmen to enable them to perform the work within the time contemplated by the contract, and that it is established Supreme Court, July, 1900. [Vol. 32. that when the plaintiff Charles V. McConologue left the place of business of the firm of Murray & Hill, after the negotiations with that firm to supply the trim had fallen through, he said in substance that he would have nothing more to do with the job. That thereupon Horenburger told him that that was not the business way of terminating the contract, and that he would give him notice. I think that it is also established as a fact that the giving of the notice was justified under article 5 of the contract between the parties, and that the notice was received as early as November 30, 1898, and, as the men were not ordered off of the work until the afternoon of December fifth, that the defendant Fagen was within his legal right in then assuming the control of the work for the purpose of completing it. Fourth. The evidence shows that, while the plaintiffs had not done work sufficient under the contract to entitle them to their first payment, there was a considerable amount of work and materials which they had performed and furnished. The plaintiffs, in their testimony, state that the value of such work and materials was $2,216.01, which, in view of the fact that the whole contract price was only $2,366, and of the evidence as to the condition of the work when the plaintiffs ceased working, is hardly credible. Liens have been filed to the extent of $1,327.66, and the defendant Fagen claims that he was put to an expense of $1,592.69 in finishing the work. Fifth. The defendants who filed liens and who did not answer are not entitled to relief in this case, but must be deemed to have waived their liens, as their liens are not admitted in the complaint. Code Civ. Pro., § 3402, subd. 3. It follows, therefore, that all of the liens except those of James Nolan and Kelly & Dwyer and Low & Flogaus have been waived. Sixth. For the same reason the motion made at the trial to consolidate the actions brought by Kanzler & Nelson must be denied, and also because such actions were not commenced until after the trial of this case was begun. Seventh. The defendants Nolan, Kelly & Dwyer and Low & Flogaus have duly proven the furnishing of materials and the performance of labor by them, and the value of such work and materials, but the plaintiffs claim that, after paying Nolan's lien, which is first in point of time, the plaintiffs are to be regarded as next in the order of priority, for the reason that as subcontractors the other defendants have no priority under the Lien Law over the contractor's lien. It is contended by the plaintiffs that section 20 of Misc.] -- Supreme Court, July, 1900. chapter 342 of the Lien Law of 1885, which provided that " 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 contractors," has been abrogated by the present law. No case has been referred to by the counsel to sustain his contention, and I am, therefore, unable to asssent to it as correct. Campbell v. Coon, 149 N. Y. 556, and cases cited. Eighth. The contract between the parties provided that all payments "shall be made upon written certificates of the architect to the effect that such payments have become due." If an architect under such a provision in a contract unjustly refuses to give a certificate, such refusal does not defeat the right of the contractor to a payment, but in this case, on the evidence, I am of the opinion that the plaintiffs never became entitled to any certificate. Ninth. Nothing has been paid under the contract, and it having cost, as the defendant Fagen shows, the sum of $1,592.69 to finish the work, the account between the plaintiffs and the defendant Fagen would stand as follows: Contract price, $2,366; amount paid by Fagen, $1,592.69 leaving a balance of $773.31 due apparently to the plaintiffs. The lienors who have answered in this case are Nolan, whose lien was filed December 6, 1898, for $138, and Kelly & Dwyer, whose lien was filed January 10, 1899, for $372.05, and Low & Flogaus, whose lien was filed January 26, 1899, for $124. These parties are entitled to interest from the date of the filing of their lien. The architect's fees are also shown to have been $55 and $66.80. These several sums amount in all, without interest, to $756.29, as follows: Nolan, $138.44; Kelly & Dwyer, $372.05; Low & Flogaus, $124; architect, $121.80-total, $756.29. With interest added they will amount to more than the difference between the contract price and the sum required. to complete the work. Foshay v. Robinson, 137 N. Y. 134. Tenth. Judgment should, therefore, be entered that the said sum of $773.31 be devoted to the payment of the liens aforesaid, and for the enforcement thereof by sale of the premises mentioned in the complaint. In all other respects there must be judgment for the defendants Fagen and Larkins. All questions of costs will be reserved until the filing of the decision. Draw decision and judgment accordingly and settle on five days' notice. Judgment accordingly. Supreme Court, July, 1900. [Vol. 32. THE PEOPLE OF THE STATE OF NEW YORK, Plaintiff, v. ANDREW J. THOMAS, Defendant. (Supreme Court, New York Criminal Term, July, 1900.) Dismissal of indictment Construction of Code Crim. Pro., 1. Crimes Section 313 of the Code of Criminal Procedure merely states those grounds upon which an indictment "must" be set aside upon the defendant's motion, and the court still has power, under section 671 of said Code, in furtherance of justice, to set it aside on grounds not mentioned in said section 313, e. g., where there is no legal evidence to support it. 66 2. Same Dismissal of indictment for failure to produce any legal evidence", before grand jury, that a police captain had willfully omitted to perform his duty. Where a police captain is charged under section 154 of the Penal Code with a willful omission to perform a duty enjoined upon him by law, in that he did not attempt to detect or arrest the keeper of a house of ill-fame and assignation where unlawful and disorderly conduct and practices were alleged to have been committed, proof, made before the grand jury, that persons in the place conducted themselves in a disorderly manner without stating what took place and that women "solicited" the witnesses, by merely asking them to "go out and have a good time" without more - affords no "legal evidence", within the meaning of section 256 of the Code of Criminal Procedure, of any willful omission of duty, and the indictment will therefore be dismissed by the court as having no legal evidence to support it. MOTION to set aside an indictment found against defendant by the March, 1900, grand jury of the Court of General Sessions. Charles L. Hoffman (Abraham I. Elkus, of counsel), for motion. Asa Bird Gardiner, District Attorney, opposed. FURSMAN, J. This is a motion to set aside an indictment found against the defendant by the March, 1900, grand jury of the Court of General Sessions. The indictment is found under sec Misc.] Supreme Court, July, 1900. tion 154 of the Penal Code, which declares that where a duty is enjoined by law upon a public officer every willful omission to perform it is punishable as a misdemeanor. The indictment charges that the defendant on the 5th day of March, 1900, was a captain of police in the Nineteenth Precinct in the city of New York; that the law imposed upon him the duty of exercising all proper, reasonable and effective means for preventing crime in his precinct, for detecting and arresting offenders and for repressing and restraining all unlawful and disorderly conduct and practices therein. It further charges that on the fifth of March, and since, there has been kept and maintained in his precinct a certain house of ill-fame and assignation, commonly called the "Cairo," and that unlawful and disorderly conduct and practices were committed therein, of all which the defendant had knowledge; that the defendant disregarded his duty in respect thereto and did unlawfully and willfully neglect and omit to perform it according to the provisions of the section above referred to, and on the contrary did unlawfully and willfully suffer and permit the same without any interference on his part and without any proper, reasonable or effective endeavor towards the detection or arrest of the person keeping and maintaining the same. The defendant now moves upon the minutes of the grand jury to dismiss this indictment upon the ground that there was no evidence before the grand jury to justify the finding thereof. I have carefully read the minutes of the grand jury (taken by question and answer) and I am constrained to hold that there was no legal evidence whatever before that body of any violation upon the part of the defendant of section 154, above cited. Section 256 of the Code of Criminal Procedure provides that "The grand jury can receive none but legal evidence". Witnesses before the grand jury testified that the persons who were found by them in the place referred to in the indictment conducted themselves in a disorderly manner, and some witnesses say that they were "solicited" by women while there. The witnesses testified that the soliciting of which they spoke consisted in asking them to "go out and have a good time". The statement that these persons conducted themselves in a disorderly manner is a mere statement of a legal conclusion. Upon the trial of a person charged with disorderly conduct a witness cannot be permitted to express an opinion as to such conduct, but must be |