
    J. Clarence Rightmyer, Respondent, v. Edward J. Doyle and Duncan V. B. Johnston, Appellants, Impleaded with the Town of Greenport and the Town of Claverack.
    Third Department,
    September 11, 1912.
    Mechanic’s lien — nse of material excavated under one contract for completing a separate contract — recovery for services in excavating under first contract — destruction of tools by fire — when contractor not liable for full value — failure to show negligence.
    Where a contract for the erection of a bridge required the removal of earth in order to make a culvert available, and the contractor, having another contract for the construction of a highway in the same vicinity, used the earth excavated under the bridge contract for the construction of the highway, there being no other filling material available without payment therefor, one who performed labor in excavating the material may recover therefor on a mechanic’s lien filed under the bridge contract. The excavation was necessary to comply with the terms of said contract, irrespective of where the soil was finally placed, provided the-use of it for the highway did not increase the cost of excavation.
    In a suit to foreclose such lien the contractor cannot be charged with the full value of tools which it had leased for use upon the work and which were subsequently destroyed by fire where it does not appear what part of the tools were used up or lost prior to the fire or prior to the contractor’s order to the owner to remove them.
    Moreover, the contractor having directed the owner to remove the tools cannot be charged with their value where they were destroyed by the burning of a barn in which they were stored, without proof of negligence on its part.
    Appeal by the defendants, Edward J. Doyle and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Columbia on the 24th day of August, 1911, upon the report of a referee appointed to hear and determine the issues.
    
      
      John J. McCall, for the appellants.
    
      Harold Wilson, Jr., and John L. Crandell, for the respondent.
   Smith, P. J.:

•This is an action brought to foreclose a lien filed by the respondent against certain moneys due the appellants Doyle and Johnston, comprising the contracting firm of E. J. Doyle & Co., from the towns of G-reenport and Claverack, on account of the erection of a bridge over Claverack creek which forms-a boundary betwe'en said towns. The respondent’s claim is for money due and owing to him from said contractors for services of men and teamp and also for tools and materials by him furnished. He also sues to foreclose another lien against said moneys, also for services and tools, assigned to him by one Van Hoesen. The defendant towns did not appear and no personal, judgment was entered against the appellants, but only a judgment ¡directing said towns to pay the amount of both liens, as found, out of the funds due said contractors from said towns. The amount of the lien as filed by the respondent was for $1,-000.6li, and of the lien filed by Van Hoesen was $133.30. At a Special Term held in Columbia county March 18, 1911, Hon. J. Rider Cady was appointed a referee to hear and determine the issues herein, and from the judgment entered upon his report this appeal is taken.

The total amount of respondent’s claim as filed by him and apart from all credits conceded to appellants was $1,259.36 and as found by the learned referee was $1,129.65. Respondent admitted credits ¡of $258.75 while the referee found credits applicable of $733:89. This difference was largely due to the fapt that the referee allowed as against respondent’s claim as filed certain payments which respondent did not deny, but which he claimed were properly applicable to other work performed by him for these same contractors. Upon this point we think the finding of the referee was fairly supported by the evidence. A considerable item of respondent’s- claim is for teaming performed for these contractors during the month of August, 1910. The appellants claim that the bridge contract, on account of which this lien was filed, was completed by the last of July and consequently that any services by respondent subsequent to that time are not covered by the lien filed. It appears that the teaming in question during August was largely done in connection with lowering the bed of the' stream underneath the bridge. Appellants’ contract with the two towns for the erection of this bridge specified: “Removing earth as shown on the plans in order to make the culvert available for carrying water.” The plan showed a lowered and practically level creek bed under the bridge and required considerable excavating there in order to widen and deepen the channel and remove part of the embankment of the old bridge. It appears that subsequently to obtaining the bridge contract this contracting firm secured from the State a highway contract for building the road adjoining the bridge. This highway contract necessitated the use of a large amount of earth for filling at the approaches to the new bridge, and much of the earth removed from the bed of the creek during the month of August was actually used on the highway and its approaches. Appellants had no place from which to procure filling material without payment therefor other than the creek bed under and at either side of the bridge within the limits of the highway, and they now assert that respondent’s claim for services during August was applicable for work under the highway contract only and not under the bridge contract as filed. We think, however, that the fact that .the same work might actually be in part performance of the two contracts does not prevent a recovery for it under the first or bridge contract. It appears from the evidence that most if not all of the removal of earth from the creek bed at this point was necessary to coin-ply with the terms of the bridge contract, and if this is so such removal was fairly work done under the bridge contract irrespective of where the soil so removed was finally placed and whether or not its ultimate disposal in a particular location might also help to complete the highway contract, provided that such placing did not add to the cost of removal, of which there is no proof.

The second cause of action, which covered the lien filed by Van Hoesen, respondent’s assignor, was for a total amount of one hundred and sixty-three dollars and eighty cents with credits admitted ©f thirty dollars and fifty cents, and was found by the referee at one hundred and seventy-two dollars and forty-five cents with credits of forty-two dollars and eighty cents. Of the- amounts claimed and allowed the sum of fifty dollars and'five cents was claimed by respondent on account of tools and implements furnished the appellants at their request and the referee allowed respondent for these items the sum of forty-nine dollars and sixty-five cents. It appears that these tools belonged to Yan Hoesen and had been taken to the work for use on the bridge contract. There is evidence that they were so used in the early part of the joh, but were not much used later on; that they were stored near the bridge in a box in a certain barn rented by the contractors, and that they were there destroyed, together with property owned by the contractors, by a fire that burned the barn and its contents in the fall of 1910. Appellant Doyle testifies that prior to this fire in April, and again in September or October, Yan Hoesen was notified to remove his tools from the job on the ground that they were not needed. This evidence is in part confirmed by the testimony of his partner Johnston and his attorney Brady and is not contradicted by Yan Hoesen. It does not appear what part, if any,,. of these tools was used up or lost on the work prior to the fire or prior to appellants’ orders to remove them. We accordingly think the appellants could not be charged with practically the total value of these tools as was found by the referee. Even if these tools were brought to the work and used thereon, pursuant to agreement the appellants surely were not liable for any loss resulting from the destruction of such articles by fire, without the negligence of appellants, and especially after they had previously directed the removal of the tools. A bailee is ordinarily not liable for the loss of goods of another in his possession in the absence of negligence on his part contributing to the loss. It may also be noted that the evidence regarding Yan Hoesen’s claim of forty-eight dollars for services rendered is not at all conclusive, but may possibly be regarded as sufficient to sustain the referee’s finding in allowing this sum.

A number of alleged errors by the referee are assigned by appellants upon this appeal, especially as regards the rate per day of the teams, the amount and price of the stone delivered and the amounts of the credits allowed for coal and lumber. As to all of these matters it may be briefly said that the evidence was conflicting, but upon an examination of the record we are not persuaded that the referee’s findings in these respects were contrary to the weight of evidence. The judgment should be reversed on law and fact and a new trial granted with costs to appellants to abide event, unless plaintiff will consent to a reduction of the judgment to exclude the value of the tools furnished by plaintiff’s assignor, in which case judgment as so reduced is affirmed, without costs to either party.

All concurred.

Judgment reversed, referee discharged, and new trial granted, with costs to appellants to abide event, unless plaintiff consents to a reduction of the judgment to exclude the value of the tools furnished by plaintiff’s assignor, in which case the judgment as so reduced is affirmed, without costs to either party. This reversal is upon the ground that the evidence does not show that the defendants were guilty of any negligence in the loss of the tools sued for in the second cause of action.  