
    William R. Delany, Plaintiff, v. Anna M. Carpenter and Harry N. Bennett, Defendants.
    (Supreme Court, Westchester Special Term,
    February, 1909.)
    Mechanics’ liens — Notice of lien — Time of filing — Completion of the contract.
    Where a contraet for furnishing and putting in plumbing, a gas machine and a heater and fixtures amounting to $457;77 was substantially performed in September and only $5 worth of work remained to be done which the contractor went in November and December to do but was then unable to do because the house was closed, and which he made no further offer or attempt to do, the time within which it was necessary for him to file a notice of lien began to run in September or, at the latest, in December, and a notice filed in April of the following year was too late.
    Action to foreclose a mechanic’s lien.
    Strang, Sawyer & Taylor, for plaintiff.
    James E. Carpenter (Thomas F. Keogh, of counsel), for defendants.
   Tompkins, J.

The defendant Anna M. Carpenter is the owner of the premises described in the complaint, against which the plaintiff seeks by this action to assert and foreclose a mechanic’s lien.

In January, 1907, the defendant Carpenter made a written contract with the defendant Bennett, by which the defendant Carpenter agreed to sell to the defendant Bennett the premises in question for the sum of $3,000; the sum of $325 being paid on the execution of the contract, and the sum of $675 to be paid on the 1st day of July, 1907, and the balance of $2,000 to be secured by a mortgage. The deed was to be delivered on the 1st day of July, 1907, and thereafter the time for closing the title was extended, from time to time, to the 21st day of February, 1908. Subsequently thereto, Bennett defaulted, and the owner Carpenter recovered possession of the premises.

Under the contract of sale, Bennett went into possession of the premises with an agreement between himself and the owner Carpenter that he should make certain repairs and improvements to said premises while in possession thereof under the contract of sale; and it is for those improvements and additions to the premises, which were concededly made and put in by the plaintiff at the request of the defendant Bennett, and with the knowledge and consent of the owner Carpenter, that this claim is made; and the only question, in my mind, so far as the validity of the plaintiff’s lien is concerned, is, whether the notice of lien was filed in time.

The plaintiff’s work consisted of the furnishing and putting in of a bath-tub, lavatory, washbowl, sink, washtubs, nump, gas machine, heater and fixtures, and other article* of a like nature, and was reasonably worth the sum of $457.77 The contract was substantially performed in September, 1907; and thereafter only five dollars’ worth of work remained to be performed, and that was never done by the plaintiff. In ¡November and December, plaintiff went to the premises for the purpose of doing that work, but was unable to do it because the house was closed. No further attempt or offer to do the work was made by plaintiff.

I think that the statutory time began to run against plaintiff’s claim in September, when the contract was substantially performed; certainly in December, when he made his last attempt to do the little work remaining to be done. His right to assert his claim under the contract existed at that time. If so, his right to file his notice of lien also existed at that time; and, if so, then the statutory time against the filing of a notice of li’en then began to run.

The notice of lien was not filed until April ninth of the following year. The. Lien Law provides that the notice of lien may be filed “ at any time during the progress of the work and the furnishing of the materials, or within ninety days afte^ the completion of the contract, or the final performance of the work, or the final furnishing of the materials, dating from the last -item of work performed or materials furnished.” The second clause of this section is the one upon which the plaintiff relies, and his claim is that the notice of lien was filed within ninety days “ after the completion of the contract.”

This was a contract job, and the plaintiff’s claim is that the contract was not complete in September or December, 1907, or even in April, 1908, because a new bath-tub which the tenant had required the plaintiff to supply and put in, under and as a part of his contract, and which the plaintiff had agreed and undertaken to put in as a part of his contract, had. not been actually set up and attached, although it had been supplied and furnished by the plaintiff and delivered to the house. Goncededly only five dollars’ worth of work remained to he done, after the fall of 1907 and after the new bath-tub was supplied, to make the entire contract in all respects complete, and that was for setting up and attaching the new bath-tub; and that five dollars’ worth of work the plaintiff offered to do in September, November and December, 1907, but was prevented from doing by the tenant himself. My interpretation of the clause of the Lien Law giving the contractor ninety days after the completion of the contract in which to file his lien means, within ninety days after the substantial completion of the contract; and my conclusion is, that the contract in question was substantially performed in September, 1907, when the new bath-tub was furnished; and that, in any event, it was substantially performed in ¡November and December of the same year, when the plaintiff made repeated attempts to set up and connect the new bath-tub and make the contract work in all respects complete and was only prevented from so doing by Bennett’s conduct; and that the filing of the notice of lien on April 9, 1908, was too late to create a valid lien against the premises, and that the complaint must be dismissed as to the defendant Carpenter.

Surely, the plaintiff could have demanded his money in ¡November or December for all the contract work and, if refused, could have filed a lien for the full amount, or brought an action for the contract price; if so, and his right to file a notice of lien then existed, it must follow that the time within which he might file such notice of lien also then began to run.

The plaintiff is entitled to judgment against the defendant Bennett for the full amount of his claim, with interest and costs. Complaint dismissed as to the defendant Carpenter, without costs.

Judgment accordingly.  