
    Van Clief et al. v. Van Vechten et al.
    
    
      (Supreme Court, General Term, Second Department.
    
    May 14, 1888.)
    Mechanics’ Liens—Abandonment oe Contract bt Contractor—Rights of Material-men.
    Under the mechanic’s lien act N. Y. 1885, providing that material-men shall have a lien for the price of materials furnished a contractor, not exceeding the amount unpaid on the contract at the time of filing the lien, where the contractor had abandoned the contract before completion, and in consequence, by its terms, nothing was due, a material-man is entitled to a lien on the difference between the amount paid on the contract and what the work done is worth.
    Appeal from judgment on report of William M. Mullen, referee.
    Action brought by John H. Van Clief and William S. Van Clief against Hannah R. Van Vechten, George. L. Smalle, Elwood H. Newman and others, to foreclose a lien for materials furnished Smalle and Newman, and used by them in constructing a house for defendant Van Vechten. The ease was tried before a referee, who found for the defendant Van Vechten, and from the judgment entered on his findings the plaintiffs appealed. The material portions of the Mechanic’s Lien Act NT. Y. 1885, are as follows: “Any person or persons * * * who shall hereafter * * * furnish any materials, which have been used, or which are to be used, in erecting * * * any house * * * with the consent of the owner * * * or his agent, ■or any contractor or subcontractor, or any other person contracting with such owner to erect * * * within any of the cities or counties of this state, may, upon the notice of lien prescribed in the fourth section of this act, have a lien for the principal and interest of the price and value of such labor and material upon such house, * * * and upon .the lot * * * upon which the same may stand, * * * to the extent of the right, title, and interest at that time existing of such owner, whether owner in fee or a less estate.” The only qualification to this is that the liens shall not exceed the amount remaining- unpaid on the contract at the time of filing.
    Argued before Barnard, P. J., and Pratt, J.
    
      Thornton, Earle & Kiendl, for appellants. Ezehiel Fixman, for respondents.
   Barnard, P. J.

The facts in this case are not in dispute. The defendant Van Vechten is the owner of a lot in Richmond county. She contracted with the defendant Smalle to furnish the material and erect and complete a building thereon for the sum of $4,298. Smalle was a carpenter, and he subcontracted with defendant Newman, to do the mason work. Smalle bought of the plaintiff material for the building to the amount of $1,264.35, and Newman purchased material for the building of the plaintiff to the amount of ■$405.75. Both these sums are wholly unpaid, and all the materials actually went into the building. The defendant had paid the contractor $2,000 on account of the contract price when the contractor abandoned the contract. The plaintiff filed this lien in proper form, and within the proper time. There was nothing due the contractors when the work stopped, under the terms of the contract, and there is no proof showing the value of the building in its incomplete state. It cost, to complete the building, for carpenter and mason work, $1,672; for stairs and closing in building, $241.80. The contractor did not furnish certain articles which were to be allowed by the court at the sum of $275. There was allowed to the architect $100 for extra service preparing for and overseeing the completion of the contract. This left $920 as the difference between the contract price and the amount paid, and the referees should have given judgment for the sum in any view of the case. There is some question whether the architect’s charge should have been allowed, but it is not necessary to pass upon this question now, as the plaintiffs are entitled to have this claim considered on an entirely different basis from that adopted by the referee. When the work stopped there was$1,670.10 of the plaintiff’s property in the house. A judgment of $800 was substantially entered. The lien law limits the lien to the difference between the money paid and the contract price, it is true, but it is not the intention of the lien law to limit the owner’s liability to such portion of the contract price as happens to be payable according to the terms of the contract, when the lien is filed. The true question is, what was earned under the contract at the time of the filing of the plaintiff’s lien ? There is proof tending to show that a very considerable sum had been earned over and above the $2,000 payment, and this sum, whatever it may be, is the fund to which the plaintiffs have an equitable right under the lien law. Heckmann v. Pinkney, 81 N. Y. 211.

The judgment should be reversed, and a new trial granted, costs to abide event, and order of reference vacated.

Pratt, J., concurs.  