
    Lawyer J. Wright, Plaintiff, v. The Schoharie Valley Railway Company and Others, Defendants, Impleaded with New England Brick Company, Appellant, and Austin Simkins, Respondent. Schoharie Valley Railway Company, Plaintiff, Impleaded with New England Brick Company, Appellant, v. Union Free School District No. 1 of the Town of Schoharie and Others, Defendants, Impleaded with Austin Simkins, Respondent.
    (No. 11.)
    (No. 12.)
    Third Department,
    December 7, 1906.
    Mechanic’s lien — material furnished to sub-contractor — extent of lien.
    One furnishing materials to a sub-contractor can only enforce a lien to the extent of the moneys due to the sub-contractor from the contractor. The lien does not cover additional sums due from the owner to the contractor, which are. not. payable to the sub-contractor.
    Kellogg,. J., dissented.
    Appeal by the New England Brick Company, a defendant in the first and one of the plaintiffs in the second of the above-entitled actions, from so much of a judgment of the Supreme Court in favor of the defendant Austin Simkins, entered in the first of the above-entitled actions in the office of the clerk of the county of Schoharie on the 20th day of November, 1905, as determines that the said Austin Simkins is liable on the notice of liens filed by the parties to the actions for only the sum of $1,094.24, the amount due from him to his sub-contractor at. the "time of tlie filing of notice of said liens and. is not liable to said lienors for so much of the sum of $3,311.40 remaining due to him as contractor at the .time of the filing of said notice of liens as is sufficient to pay said -liens,, and denies the lienors judgment for the amount of their liens with interest against said Simkins.
    
      S. L. & C. B. Mayham, for the appellant.
    
      Jackson & Strong, for the respondent.
   Smith, J.:

The appellant’s lien is filed for materials furnished a sub-contractor. The work was performed in the erection of' a high school building in and for Union Free School District No. 1 of the town of Schoharie under a contract made between said school district as owner and Austin Simkins, the respondent herein, as contractor. On the trial it appeared that after the making of the contract between the school district and Simkins, he^ by a contract in writing, sublet a portion of the work to one Sloan, who in his contract with Simkins agreed to perform said portion and furnish materials therefor. The appellant here furnished brick to said Sloan, the subcontractor, to be used in the construction of said building. Upon the completion of the work there was owing from the contractor to the sub-contractor about $1-000, but there was owing from the owner to the contractor upwards of $3,000. The trial court has held that the liens for material furnished the sub-contractor can only be enforced to the extent of the moneys found to be due to him from the contractor. This holding is challenged by this appeal.

In the opinion at Special Term the decision was based mainly upon the case of Brainard v. County of Kings (155 N. Y. 538). The question was not discussed in that case and it was assumed that the lien could not be enforced beyond the amount due from the contractor to the sub-contractor. The rule, however, seems to have been squarely held in the case of Lumbard v. Syracuse, B. & N. Y. R. R. Co. (55 N. Y. 491), and in the case of French v. Bauer (134 N. Y. 548). (See, also, Martin v. Flahive, 112 App. Div. 347.) The statutes construed in these cases were substantially similar to the statute construed in the case at bar, and these authorities are, I think, controlling. In the French case Judge Haight, writing for the court, in part says: It will be observed upon reading the two acts that, whilst they differ in phraseology, they are the same in substance. The policy, as disclosed in. both, is to the effect that, except in cases of fraud and collusion, the owner cannot be compelled to pay any greater sum for the completion of his building than that which, by his contract, he had agreed to pay, and the same is true of a contractor who has in turn in good faith paid the subcontractor the amount due him after the same has become due and payable. The effect of the statute is to take from the owner the) money owing by him on his contract and to apply it in payment for the labor and materials furnished by others in the performance of the contract, and the same rulé should be applied to the case of a contractor who has paid to a-sub-contractor all that he is entitled to.” The judgment should, therefore, be-affirm'ed, with costs-,.

All concurred, except Kellogg, (f., dissenting; Cochrane, J., not sitting.-

"Judgment affirmed, with costs.  