
    William J. Wagner, Respondent, v. C. Le Roy Butler and Grace E. Butler, Appellants, Impleaded with Louise R. Christ and Barbara R. Spring, Doing Business as “ Broadway-Flushing Contracting Company.”
    Second Department,
    February 7, 1913.
    Mechanic’s lien — effect of advance payments to contractor upon liability to sub-contractor.
    The provisions of section 7 of the Lien Law that payments to a contractor made prior to the time when they become due under the contract for the purpose of avoiding the provisions of the statute shall be of no effect against the lien of°a sub-contractor created before the payment became due were not intended to prevent an owner from modifying or terminating his contract or facilitating his work by payment earlier than the contract stipulated.
    Hence, where in a suit by a sub-contractor to foreclose a mechanic’s lien it appears that before said lien was filed the contractor had completed a building, but that the sidewalks could not be laid until suitable weather, and the owner in good faith paid the contractor, reserving a certain amount to meet the expense of laying the sidewalk, the complaint should be dismissed, although the owner had promised to pay the plaintiff.
    
      Appeal by the defendants, 0. Le Boy Butler and another, from a judgment of the County Court of Queens county in favor of the plaintiff, entered in the office of the clerk of said county on the 1st day of August, 1912, upon the decision of the court rendered after a trial at a Special Term of said County Court.
    
      John L. Lindsay, for the appellants.
    
      Easton S. Bacon [William Sutter with him on the brief], for the respondent.
   Thomas, J.:

The action by a sub-contractor is to foreclose a mechanic’s lien, notice whereof was filed on February 27, 1911. But on the previous January and February seventeenth the owner had paid the contractor two sums aggregating $450, and the obligation of the contract released, although $125 was reserved by the owner to meet the expense of laying the sidewalk when suitable weather should permit it to be done. But the plaintiff invokes section 7 of the Lien Law (Consol. Laws, chap. 33 ; Laws of 1909, chap. 38) and asserts that the payments were ineffective to avoid his lien, inasmuch as they were not payable until the completion of the work, and hence not until the sidewalk should be laid. To sustain this contention the plaintiff must prove that the payments were accelerated “for the purpose of avoiding the provisions of” the Lien Law. To maintain that issue the plaintiff proved the owner’s knowledge of the lien before the payment. Indeed, such knowledge was deemed sufficient evidence of purpose to avoid the lien in Wolf v. Mendelsohn (87 N. Y. Supp. 465 [App. Term]) and in Behrer v. McMillan (114 App. Div. 450; affd., sub nom. Behrer v. City & Suburban Homes Co., 191 N. Y. 530), although the lien in the last case was not sustained. This would construe the section to read that advance payments made with knowledge of a sub-contractor’s unpaid claim are ineffective against a notice of lien subsequently and duly filed. Such holding disregards the purpose or intention with which the payments are made, while the statute has sole regard to that. It was not intended to disable the owner from modifying or terminating his contract or facilitating his work by payment earlier than the contract stipulated. In the present case the building was ready for use. The sidewalk must await a season that permitted this construction. Should the contractor be compelled to await the payment for work actually done until the season would permit this relatively slight thing to be done ? That would mean disability to modify a contract, at which the statute was not aimed. But it is urged that the owner knew that the contractor was not paying its men, that it was irresponsible in that regard, that it had not paid the balance due the plaintiff, and that the latter had given the owner notice of the fact that he must look out for him, and that the owner had promised to attend to it. There is no evidence that the plaintiff was deterred by such assurance from filing his notice. The work was finished in November, the hen was not filed until February twenty-seventh thereafter. The substance of plaintiff’s argument is that, where the owner knows that the contractor is in default in his payments for labor and material contributed by others to the building, he must see to it that the default is met before he makes advance payments to the contractor. There is no such obligation at common law, and the statute does not contemplate it. It would make the owner the supervisor of the affairs of the contractor, necessitate an accurate knowledge of his affairs and constitute him a trustee for the material men before they made him such by filing liens. But it is superadded that the defendants promised to attend to it. That would not make him liable at law. No action for fraud could rest on such promise of future action. The failure to attend to it is not evidence that the owner paid the contractor to escape attending to it. The fact is that the work was not done in July, 1910, as agreed, and the owner in writing extended the terms of payment to December 1, 1910, and agreed to pay him the balance due, “provided, however, he delivers to me a receipt from one William J. Wagner [plaintiff], a sub-contractor on the Forest Avenue house, showing that his entire claim for labor and material furnished on said house has been paid.” The plaintiff was not privy to his agreement. When the money was finally paid and the relations of the contractor and owner to the building contract ended, the contractor showed the owner a letter purporting to be written by the plaintiff to the contractor offering to settle his claim for a sum named and notes indorsed. The owner, assuming that the matter would be met in that way, settled with the contractor. It may have been done inconsiderately and without proper regard for his promise to attend to it, but that does not show that it was fraudulently done. The plaintiff’s claim that the work was not done when the payment was made reaches too far. The contractor never finished the work. Hence, if the modified agreement be in contravention of plaintiff’s rights, the contract was never performed, and plaintiff cannot recover. But the work was finished because the owner agreed to finish it, and there was no fraud shown in the arrangement that he made.

The judgment should be reversed and judgment should be entered dismissing the complaint, with costs.

Jenks, P. J., Oaee, Woodward and Bioh, JJ., concurred.

Judgment of the County Court of Queens county reversed and complaint dismissed, with costs.  