
    Andreas Graf et al., Resp’ts, v. Mary Cunningham, impleaded, etc., App’lt, Samuel Self, impleaded, etc., Resp’t.
    
      (Court of Appeals,
    
    
      Filed April 24, 1888.)
    
    1. Building contract—Eight to claim forfeiture op.
    The defendant agreed with one W. to pay him $3,600 for building a house, the payments to be made in installments as certain stages in the process of building were reached. She paid W. $1,50Q during the progress of the building, and when $400 more were due him under the contract she refused to pay, claiming it was not due. The contractor, upon defendant's refusal to pay, neglected to go on with the work, when she served a notice upon him, stating that as he had announced he had abandoned the work, and as he had stopped work, she thereby required him to proceed with the erection thereof within two days, and if he failed so to do, she should cgnsider that he had abandoned the work, and she would proceed herself to finish the erection of the building and hold him for the damages. W. did not proceed, and she went on and finished the building at an expense of $1,430, which left a balance of $570 of the original contract price. Held, that the building was completed under said notice, and that W., by his silence, acquiesced in such action; that defendant could claim no forfeiture of the contract because W. did not go on after his notice, as she wrongfully refused to pay the $400 which was due him at the time she gave the notice.
    2. Same—Mechanics’ liens—Rights op lienors.
    The plaintiff and some of the defendants were sub-contractors, and filed liens and bad recovered judgments for the payment to them of their liens out of the above $570 to the extent it would go. Held,, that they were entitled to have it so applied.
    3. Mechanics’ lien filed in Kings county under Laws 1862, chap. 478— Effect op Laws 1880, chap. 486.
    The Laws 1862, chapter 478, which applied to Kings county did not require the notice of lien to be verified. This law was not repealed by the passage of Laws 1880, chapter 486.
    Appeal from a judgment of the general term of the city court of Brooklyn affirming a judgment of the special term in favor of the plaintiff.
    
      
      J. Stewart Boss, for app’lt; Henry Fuenrer, for resp’ts; F. P. Bellamy, for resp’t, Self.
   Beckham, J.

—The defendant agreed with one Wilson to pay him $3,500 for building a house, the payments to be made in instalments as certain stages in the process of building were reached. She paid Wilson $1,500 during the progress of the building, and the court finds that upon the date named in its finding $400 more were due him under the contract. She refused to pay it and claimed the work was not advanced far enough and was not done in accordance with the contract.

The court found against her on these points and there is evidence to sustain the finding.

The contractor, upon defendant’s refusal to pay, neglected to go on with the work, when she served a notice upon him stating that as he had announced he had abandoned the work, and as he had stopped work, she thereby required him to proceed with the erection thereof within two days, and if he failed so to do she should consider that he had abandoned the work and she would proceed herself to finish the erection of the building and hold him for the damage. Wilson did not proceed, and she went on and finished the building at an expense of $1,430, which, with the $1,500 already paid, left a balance of $570 of the original contract price.

The plaintiffs and some of the defendants are sub-contractors and filed hens and have recovered judgments for the payment to them of their hens out of the above $570, to the extent to which it will go. Pour hundred dollars were due Wilson when he demanded it for work which he had already done, and the owners refusal to pay was wrongful. This is the finding of the court.

There can be no question but that such sum should be paid the lienors in this proceeding, as a payment pro tanto for the work done by them on the building, and which the plaintiff has the benefit of, because that sum at least was due Wilson at the time he demanded it, and which the owner has never paid.

More difficulty exists in relation to the $170. But we think upon the whole it should also be allowed the lienors, and such allowance simply makes the owner liable for the contract price of the building which she agreed to pay Wilson. We think the plaintiff in effect went on under her notice above mentioned, and completed the building at the expense of the contractor Wilson, and he by his silence, must be held to have acquiesced in such action. She could claim no forfeiture of the contract because he did not go on after her notice, for the reason that she was herself in the wrong and had no right to insist upon his continuing work while she refused to pay the $400, which were due the contractor at the very time when she gave this notice. Rather than pay that sum when it was due, she preferred to try and make the contractor go on with the work without it, and when she notifies him of the consequences of his refusal, that she will go on and complete the building and hold him for damages, it is but another way of saying that she will complete it at his expense, in which he acquiesces. She does complete it and for $170, less than it would have cost had she paid Wilson the $400 when due him, and he had gone on and completed it. She could not put the contractor in default for his neglect or refusal to proceed and complete the building because she was herself in default in refusing-to pay him the $400 when due. Under all the circumstances, we think it is fair to treat her as if the contractor had consented to her going on and completing the building at his expense up to the amount of the contract price.

This would bring the case within Wheeler v. Scofield, 67 N. Y., 311. She could not obtain the right to go on and complete the building outside of the contract and treat it as abandoned by the mere service of her notice, unless she had the right to so treat it by the refusal of Wilson to go on until he was paid the $400. As there was no right to so treat him, her notice to that effect was to that extent useless, and his acquiescence can be referred to an acquiescence on his part to the completion at his expense, which under the circumstances we hold the notice amounted to.

As to the objection to the notice of lien of Self, that it was not verified, we do not think it tenable. Under the act pf 1862, which applied to Kings county, it was not required. That act was not repealed by the passage of the act of 1880 (chap. 486) which applied to the pities of the state generally. See McKenna v. Edmundstone, 91 N. Y., 231.

We have examined the other questions arising upon the exceptions to the rejection of evidence and do not think them tenable.

The judgment should be affirmed, with costs.

All concur.  