
    Thomas R. Sheffield, Resp’t, v. Christian Loeffler, App’lt.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed December 10, 1888.)
    
    Mechanics’ men—Abandonment by contractor—Sub-contractor.
    Where the work was abandoned by the original contractors, a subcontractor, who has filed a lien under the mechanics’ lien law of 1885, may enforce it against any sum remaining in the hands of the owner, after making allowance for what is required to complete the work, and the owner cannot interpose as a defense the filing of other liens prior to said contractor’s.
    Appeal from a judgment and order of the county court of Kings county affirming a judgment rendered by a justice of the peace in an action to foreclose a mechanics’ lien in a justice’s court under the new lien law passed in 1885.
    
      John Hahn, for app’lt / Martin E. Hatpin, for resp’t.
   Dykman, J.

This is an appeal from a judgment of the county court of Kings county, affirming a judgment rendered by a court of a justice of the peace in favor of the plaintiff, for the sum of seventy dollars damages, and two dollars and fifty cents costs, in an action to foreclose a mechanic’s lien in a justice’s court, under the lien law of 1885. The appellant made a contract in writing with two contractors for the erection of a house to be paid for in installments as the work progressed. The plaintiff made a sub-contract with the original contractors for the furnishing of fire escapes to the house to the amount of seventy dollars.

The work of the contractors went on until September, 1887, when they presented the superintendent’s certificate required by the contract entitling them to the third installment, and they received the balance of that installment on that day. On the next day the contractors abandoned the work, and the plaintiff thereupon filed his lien under which this action was brought.

It appeared by the evidence that the appellant who was the owner, agreed to pay the original contractors $4,445 for the erection of the building, and when they ceased work he had paid them the sum. of $2,860 upon the contract, which left a balance due thereon of $1,585, and it appeared that out of such balance the appellant will be obliged to pay $1,025 to complete the building, which will leave a balance in his hands of $560. The lien of the plaintiff, therefore, was valid, and attached to the sum remaining in the hands of the owner when the lien was filed, and the claim that the owner can interpose as a defense in this action the filing of other notices of liens against the building prior to the lien of the plaintiff, is untenable.

Our conclusion is that the judgment should be affirmed with costs.  