
    Zephirin Lemieux, Respondent, v. Michael English, Defendant, and Thomas J. McLaughlin et al., Appellants.
    (Supreme Court, Appellate Term,
    February, 1897.)
    1. Mechanic’s lien — Proof necessary to authorize judgment against owner.
    To authorize a recovery against the owner in an action to foreclose a mechanic’s lien by a subcontractor or materialman, it is necessary to prove not only that the contractor was indebted to the plaintiff at the time the lien was filed, but also that at such time there was due and owing to the contractor, or that thereafter there accrued to him from the owner, a sum applicable towards the satisfaction of the debt to the plaintiff.
    2. Same — Failure of contractor to complete.
    The defendant English entered into a contract to build a house for the other defendants, for which they were to pay $1,200, no time for payment being specified. After about $750 had been paid thereon, plaintiff, who was employed by English, filed a lien for work, and the following month English abandoned the contract, and the owners had the work completed at a cost which exceeded the balance of .the contract price. In an action to establish the lien after a discharge thereof by a deposit, Held, that no recovery could be had against the owners.
    Appeal from a judgment for the plaintiff which was rendered by the District Court, in the city of New York, for the Tenth J udieial District.
    Action against the contractor and owners for the foreclosure of a lien claimed pursuant to the provisions of the Mechanics’ Lien Law (chapter 342, Laws 1885), for work performed upon the employment of the contractor, the lien having been discharged before suit by the deposit of the amount claimed with the county clerk.
    Jacob M. Guedalia, for appellants.
    Ovide Robillard, for respondent.
   Bisohoee, J.

The judgment against the defendant owners is without support in the evidence and should be reversed.

The notice of lien was filed August 9, 1895, and from unchallenged and sufficient evidence the justice below found that the plaintiff was employed by the defendant English, the contractor, to do certain carpenter work upon a building of which the defendants McLaughlin and Bach were the owners, and that when the lien was filed there was due and owing to the plaintiff from English $57.75, as and for the fair and reasonable value of the work done.

It remained, however, for the plaintiff to show, as. essential to the validity of the lien claimed, that at the time of the filing of the notice of such claim there was due and owing to the contractor, or that thereafter there accrued to the contractor from the owners, a sum applicable towards the satisfaction of the debt owing from the contractor to the plaintiff (Van Clief v. Van Vechten, 130 N. Y. 571; French v. Bauer, 134 id. 548; Foshay v. Robinson, 137 id. 134; Kelly v. Bloomingdale, 139 id. 343; Ogden v. Alexander, 140 id. 356; Mechanics’ Lien Law, chap. 342, L. 1885, § 1, as amended by chap. 316, L, 1888), and hereof the evidence utterly failed. '

English had assumed to do all the carpenter work and the appellants had assumed to pay him therefor $1,200, but when and how such payment was to be ■ made did not appear. The contract was, therefore, an entire one, and the appellants would not owe English any part of the sum agreed to be paid by them until he had at least substantially performed the contract upon his part; such performance being a condition precedent of his right to payment.

The only evidence bearing upon the question of English’s performance was introduced in the appellants’ behalf, and was to the effect that on or about September 12, 1895, about one month subsequent to the filing of the plaintiff’s notice of lien, when the work contracted for was only about half done, and after he bad been paid $750 on account of the contract sum, English abandoned the contract, and that thereafter the work was completed by the appellants at a cost to them exceeding the sum which would have accrued to English upon substantial performance, after deducting the payments on account, by about $235.

It further appeared that of the $750 received by English, $129 were paid to him sometime between August 2d and September 12th, and from that circumstance we are asked to conclude that the last-mentioned sum was actually due and owing to him at the time, and, if paid after the date of the filing of the plaintiff’s notice of lien, is available to the plaintiff. Foshay v. Robinson, supra. But the notice of lien was not filed until August 9th, and the evidence last above alluded to is obviously insufficient to authorize a finding that the $129 were paid after that date. As to payments before his notice of lien was filed the appellants encountered no risk of liability to the plaintiff if such payments were, when made, due and owing or were not mere advances.

However, observing the apparent terms of the appellants’ contract with English, that the former were only to pay the sum agreed upon the latter’s substantial performance of the work he assumed to perform, the only permissible inference with regard to the payments actually made is that they were voluntary upon the part of the appellants, that is to say, in the nature of advances on account of the sum thereafter to accrue, but which never did accrue.

Our conclusion upon the merits of the plaintiff’s claim of a lien, adversely to him, obviates the need of discussion of other alleged errors which are assigned for reversal.

Judgment reversed, and new trial ordered, with costs tó appellants to abide event.

Daey, P. J., and MoAdam, J., concur.

Judgment reversed and new trial ordered, with costs to appellants to abide event.  