requiring that some performance or labor, other than that naturally concomitant to the supplying of the material contracted for (e.g., loading or unloading of the material) must be done before the materialman can be deemed a subcontractor
How later courts described this case
- requiring that some performance or labor, other than that naturally concomitant to the supplying of the material contracted for (e.g., loading or unloading of the material) must be done before the materialman can be deemed a subcontractor
- labor expended necessarily concomitant to supplying goods
Written by the judges who cited it.
The opinion
*273 Bergan, J. (dissenting).
The statute is explicit in saying that if any part of a contract is performed for a contractor, the person so performing that portion is deemed a subcontractor (Lien Law, § 2, subd. 10). It cannot be doubted that putting material in place on a road could be deemed performing part of the road building contract. For example, a laborer who spreads out gravel for the road would clearly have a good lien for his wages.
To the extent this may be in doubt, or open to debate in a particular case, a question of fact arises. Here that question has been resolved by the affirmative finding at the trial and at the Appellate Division.
The order should be affirmed.
Chief Judge Full» and Judges Breitel and Jasek concur with Judge Scileppi ; Judge Bergak dissents and votes to affirm in a separate opinion in which Judge Burke concurs.
Order reversed, with costs, and case remitted to Supreme Court, Niagara County, for further proceedings in accordance with the opinion herein.