
    BLAKESLEE v. FISHER et al.
    (Supreme Court, General Term, Third Department.
    December 8, 1892.)
    1. Mechanics’ Liens—Failure to Complete Work—Subcontractors. Where a building contract expressly provides that the owner may complete-the work in case of the contractor’s default, and deduct the expense from the contract price, failure of the contractor to complete the work does not prevent the lien of a subcontractor from attaching to the balance due the contractor after the owner’s completion of the work; and it is immaterial that the owner has seen fit not to exercise his option, and not to do what he claims the contractor refused or neglected to do, where the expense of doing the things not done can be definitely ascertained.
    3. Same—Extra Work by Contractor—Lien on Excess. Where a building contract permits the owner to make additions to, alterations of, or supply omissions from the contract, and provides that their value may be added to or deducted from the contract price, as the case may be, the contractor is entitled to the excess of the value of extra work performed by him over the value of work omitted by him to be done; and a subcontractor may enforce his lien for material furnished for the building, to the extent of such excess.
    Appeal from judgment on report of referee.
    Action by Charles I. Blalceslee against Samuel T. Fisher and Michael H. Farren to foreclose a lien for lumber furnished defendant Farren, and used by him in constructing a house for defendant Fisher. From a. judgment entered on a referee’s report in favor of defendant Fisher, dismissing the complaint as to such defendant, plaintiff appeals. Reversed.
    Defendant Farren had a contract to do the carpenter work on defendant Fisher’s house, in which the material furnished by plaintiff was-used. Numerous changes were made in the plans for said building by said owner after the signing of the contract, and considerable extra work was done by the contractor, by the direction of the owner, of the value of $255.99. Certain work, of the value of $102.69, called for by the-contract, was omitted by the contractor, with the consent of the owner, and $59.25 worth of work, as found by the referee, had been omitted, by the contractor without the consent of the owner.
    Argued before MAYHAM, P. J., and PUTNAM and HERRICK, JJ.
    Pratt & Logan, (Louis W. Pratt, of counsel,) for appellant.
    Edward W. Nugent, for respondents.
   HERRICK, J.

I think the referee erred in his conclusion in this-case. Under the contract the owner could go on and complete the work, if the contractor refused or neglected to do so, and deduct the expenses, from the.amount of the contract. If, after doing so, there is a balance left, or, if the owner does not choose so to do, then if, after deducting what it would cost to complete the work from the contract price, there is a balance left, I think the lienor is entitled to that balance. Wright v. Roberts, 43 Hun, 413, affirmed without opinion in 118 N. Y. 672, 23 N. E. Rep. 1145; Foshay v. Robinson, (Sup.) 16 N. Y. Supp. 817; Graf v. Cunningham, 109 N. Y. 369, 16 N. E. Rep. 551; Van Clief v. Van Vechten, 130 N. Y. 571-581, 29 N. E. Rep. 1017. The last case was one where the owner had gone on and completed the contract upon the default of the contractor, and the court said:

“The difference between the sum thus expended and the aggregate amount unpaid on the contract with Smalle upon completion of the entire work became •due under the contract. To the extent of that sum, being the difference between $2,023 and $1,905.20, the lien of the plaintiffs attached, and they are entitled to a foreclosure for that amount.

In Larkin v. McMullin, 120 N. Y. 206, 24 N. E. Rep. 447, and Hollister v. Mott, 132 N. Y. 18, 29 N. E. Rep. 1103, there was not a ■substantial compliance with the contracts, and neither was there any provision in the contract by which the owners could complete the contracts in case of the contractor’s default; and in those respects the eases s,re distinguished from those heretofore cited, the principles of which -are recognized in both the Larkin and Hollister Cases. In the case before us, as we have seen, there was an express provision allowing the •owner to complete the work in case of the contractor’s default, and deduct the expense from the contract. The plain inference from that, it seems to me, is that after making such deduction the balance, if any, would be payable to the contractor. The fact that the owner has not seen fit to exercise his option to go on and do what he claims the contractor refused or neglected to do seems to me to make no difference, in principle, where the expense of doing the things not done can be ascertained. In this case the referee has found the specific things that the •contractor refused or neglected to do, and the cost or expense of each item, and after deducting such cost or expense from the contract price, there is a balance left; and to that balance, I think, under the principles of all the cases hereinbefore referred to, the plaintiff is entitled.

There is also another aspect of the case under which I think the plaintiff is entitled to recover. The referee has found that the contractor has not substantially performed his contract,—a conclusion in which I cannot concur, but which I will not discuss, but assume to have been correctly found; and the final decision arrived at by him is based upon that conclusion,—that, the contract not being performed by the contract- or, there is nothing due him from the owner, and that, there being nothing due the contractor, there is nothing to which the lien can attach. The contract price was $2,700. The referee has found that $2,509 was paid upon the contract; that, by consent of the owner, work amounting to the sum of $102.69 has not been performed by the contractor; and that work amounting to the sum of $59.25 has been left unperformed without the consent of the owner. The referee has also found that the •contractor has performed extra work to the amount of $255.99. The contract contained this provision as to extra work:

“Should the owner, at any time during,the progress of the said buildings, request any alterations, deviations, additions, or omissions from the said contract, he shall be at liberty to do so; and the same shall in no way affect or make void the contract, but will be added to or deducted from the amount of the contract, as the case may be, by a fair and reasonable valuation. ”

An almost identical provision in a contract was passed upon in Garnsey v. Rhodes, (Sup.) 18 N. Y. Supp. 484 ; and it was there held that the contractor could recover the value of the extra work, although he had not completed the contract according to its terms. The amount of the extra work is money due the contractor. Woodworth v. Fuller, 80 N. Y. 312. In this case it is money due over and above all payments made, and over and above all deductions to be made, on account of work omitted to be done, both with and without the consent of the owner; and it is money that can be and should be applied in satisfaction of the lien. For these reasons the judgment should be reversed, the referee discharged, and a new trial granted; costs to abide the event. All concur.  