
    James H. Watson et al., Appl'ts, v. Gardner T. Cone, Impl'd, Respt.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed December 12, 1892.)
    
    Mechanic’s lien—Abandonment by contractor.
    Where a contractor abandons work at a time when he has been paid in full, without collusion, for all work actually done, and the owner is compelled to pay more than the contract price to finish the house, a material man can get no lien.
    Appeal from judgment dismissing complaint as to defendant, Gone, and directing the cancellation of the notice of lien.
    The plaintiffs furnished materials to the defendant Jacob Y. Smith, which were used by Smith in the erection of a house for defendant Cone under a contract.
    The plaintiffs having filed their notice claimed a lien under the statute.
    The amount agreed to be paid by defendant Cone to defendant Smith; the contractor, was $4,300 four instalments of $1,300, $800, $900 and $1,300; the third payment to be made when plastering was completed; the last when the house was finished. Cone paid the first two payments and $700 on account of the third, when the contractor, not having finished the plastering, abandoned the contract altogether. Cone then finished his house according to the original plans. The finishing of the plastering cost him $525, and the completion of the house in all its parts about $3,000, i. e., about $1,500 more than the contract price.
    The notice of lien was filed after the contractor abandoned the work.
    
      J. Herbert Watson (Horace Graves, of counsel), for app’lts;
    
      Josiah T. Marean, for resp’t.
   Barnard, P. J.

The defendant Smith agreed with the defendant Cone to construct a house on his1 premises for the sum of $4,300 payable by instalments. The first two instalments had been paid, and $700 in advance, but without any collusion or intent to defraud thereby. Smith abandoned the contract and Cone was compelled to pay over $3,000 to finish the house. The first two payments were $2,100. The owner had the right by contract to finish the building and to deduct the expense from the contract price. There was performed at the abandonment of the contract by Smith no greater proportion of work to be done than the first two payments bear to the contract price of $4.300.

The case of Van Clief v. Van Vechten, 130 N. Y., 571; 42 St. Rep., 736, decides this case against the plaintiffs.

The judgment should be affirmed, with costs.

Dykman and Pratt, JJ., concur.  