
    Charles Doll and Charles Doll, Jr., Appellants, v. Matthew Coogan and Others, Respondents.
    
      Mechanic’s lien — it does not cover damages for a breach of a contract — dismissal of a complaint, what is implied therefrom — when it is proper.
    
    Building contractors cannot file a- mechanic’s lien for damages resulting from a breach of the contract in refusing to allow them to proceed therewith.
    Where building contractors file a mechanic’s lien in which they make a claim for damages resulting from a refusal to allow them to complete their contract, and also a claim for labor and materials furnished in the performance of work actually done under the contract, and in an action to foreclose the lien a question of fact arises as to whether the plaintiffs have been paid in full for the work actually performed by them, and the court directs the entry of a judgment dismissing the complaint, on the ground that the plaintiffs have no claim against the defendants which can be recovered in such an action, it will be considered that the court decided the disputed question of fact in the defendants’ favor, there being nothing in the record to the contrary.
    Where the court presiding at the trial of an action in equity, involving issues of law and fact, finds that no cause of action in equity has been proved', the proper judgment is the dismissal of the complaint.
    Appeal by the plaintiffs, Charles Doll and another, from a final judgment* of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Rew York on the 12th day of August, 1898, upon the decision , of the court rendered after a trial at the Rew York Special Term.
    
      
      William L. Mathot, for the appellants.
    
      Henry G. K. Heath, for the respondents.
   Ingraham, J.:

The action was brought to foreclose a mechanic’s lien, and upon the trial judgment was ordered in favor of the defendants against the plaintiffs dismissing the complaint, with costs. One of the plaintiffs testified that the defendant Coogan had entered into a contract with the plaintiffs by which the plaintiffs agreed to paint,. varnish, decorate and paper seven houses in One Hundred and Forty-seventh stieet, between Willis and Brook avenues, for the sum of $2,300; that the plaintiffs did the work on three houses complete; that the witness had a conversation with the defendant Coogan in relation to the completion of the work later on, but could not say how it was that the plaintiffs could not complete the work On the other houses; that he went to the premises with eight men,, materials, etc., to complete the work, when the defendant’s superintendent told him that he must wait until the. defendant came, as they must get some' workmen out of the building before the plaintiff could start his work; that the plaintiff had the men ready to do the work for several days when the defendant Coogan came and said : Mr. Doll, I can’t get those men out any more and we have to settle that part between ourselves,” and that then the plaintiff removed the goods and the men. The plaintiff Doll also testified that he did certain extra work, and that he received a total of $900 on account. The defendant Coogan testified that the plaintiffs agreed to do the houses for $300 a house; that this contract related to the three houses that were first built; that it was further agreed that, “provided lie.did the first three right I would give him the others, and I thought at the time he would. He went to work on the three houses. He did the work fairly well, only the three rooms that was a portion of the parlor in each house ; that was his contract to do those. ' He did not do those rooms,” and also failed to paper the walls up to the roof; that his charge for varnishing and staining sixty ¡lairs inside blinds in the three houses was in his contract; that, there was nothing in the agreement about extra work on the. blinds, and that the plaintiff made no charge for extra work before the suit was brought; that after the three houses were completed the plaintiff did not go to work on the four houses'; that the defendant would not allow the plaintiff to go to work on the four houses because he had not finished the first three; and that the contract was for $300 a house, and the plaintiff was paid on the three houses $900.

The court filed its decision, stating concisely the grounds upon which the issues had been decided, and directed judgment to be entered thereon under section 1022 of the Code. The ground of the decision was that the plaintiffs had no claim against the defendants whichcould.be recovered in an action to foreclose a mechanic’s lien. In this the court necessarily decided that the plaintiffs had been paid for all the labor and materials furnished upon the houses in question, and that any claim which the plaintiffs had against the defendants was an action for damages for a breach of the contract, and that for such a claim or demand the plaintiffs were not, under the statute, entitled to file a mechanic’s lien and enforce it against the property; and for that reason the court dismissed the complaint.

The mechanic’s lien which the action was brought to foreclose alleged that the plaintiffs had a lien for. principal and interest for the price and value of the labor and materials furnished upon the house, building and appurtenances therein mentioned, as follows: “ Painting, varnishing, paper hanging and decorating, and materials necessary for samé to the amount of $689.53 performed and furnished towards the erection and construction of the buildings on the lots hereinafter described under a contract between said owner and the claimants to the amount of $277.75; that plaintiffs were ready and willing and tendered performance of said contract, but were prevented by the owner from fully performing the same to the further damage of $411.78,” which said sums of $277.75 and $411.78 make the entire amount of $689.53 for which the plaintiffs claim a lien. It appeai-s, therefore, that the plaintiffs’ claim consisted of two items; one for $277.75 for labor and materials furnished ; and one for $411.78 damages caused by the refusal of the defendants to allow the plaintiffs to complete their work. The evidence of the defendants was that the plaintiffs had agreed to do the work for $300 a house; that, they had done that work on three houses, with the exception noted ; that the defendants had paid the plaintiffs $300 for eaclr of the three houses completed, but refused. to allow them to do the other houses because the plaintiffs had not completed the three houses mentioned. The finding of the court, that the plaintiffs had no claim against the defendants which could be decreed in this action, involved a finding that the plaintiffs had been paid for all the work done and materials furnished, leaving the only claim that the plaintiffs could have against the defendants one for any damages sustained by reason of the breach of the contract by the defendants in refusing to allow the plaintiffs-to do the other four houses.

It is not claimed by the plaintiffs that, under the Mefehanics’ Lien Law, a contractor can file a lien upon- the premises for damages sustained by reason of a breach of - the contract in refusing to allow a contractor to proceed with the contract. By the Mechanics’ Lien Law (Chap. 342, Laws of 1885j as atnd. by chap. 316, Laws of 1888), under which this lien was filed, it is provided by section 1 that “ Any person or persons, firm or firms, corporation or association who shall hereafter perform any labor or services, or furnish any materials, which have been used or which are to be used in erecting ■ * * * any house * * * may, upon filing the notice of lien prescribed in the fourth section of this act, have a lien for. the principal and interest of the price and value of such labor and material upon such house "x* * * and upon the lot, premises, parcel or farm of land upon which the same may stand or be intended to stand.” The lien is plainly restricted by the statute to the “ price and value ” of the labor and materials furnished. Any claim for damages for a breach of a contract in refusing to allow a contractor to do the work is not within the provisions of the act, and must be enforced in an ordinary action for damages against the contracting party.

The only substantial point made upon this appeal seems to be that, as this was a nonsuit and as no motion Avas made for a nonsuit upon the trial, the plaintiffs were entitled to have the question passed upon on the merits,-and that such a nonsuit was improper. This action Avas in equity, tried before the court without a jury, and the ■ decision of the court directed a judgment dismissing the complaint; There Avas no nonsuit, and nothing to show that the. court did not decide the question of fact in favor of the defendants as to the amount due to. the plaintiffs for labor and materials actually furnished. If, as claimed by the defendants, the contract between the parties was that the defendants were to pay the plaintiffs $300 for each house finished, and that the only labor and materials furnished by the plaintiffs were for the work done upon the three houses mentioned, for which the defendants had paid the plaintiffs the contract price ; and if the only other claim that the plaintiffs had against the defendants was one for the breach of a contract in refusing to allow the plaintiffs to do the work upon the other houses, it would follow that the court was right in holding that the plaintiffs had no claim against the defendants for which they were entitled to file a mechanic’s lien ; and thus the dismissal of the complaint was proper.

The cases relied on by the appellants were all actions at law. Thus, Higgins v. Eagleton (155 N. Y. 466) was an action for damages and was tided before a jury. Capasso v. Woolfolk (25 App. Div. 234) was an action for damages for negligence; and so was Mearns v. Central Railroad (23 id. 298). The rule as to a nonsuit, or a direction of a verdict in an action.at,law, where the issue of fact is for the jury, is entirely different from that in an equity case where the court is to determine both the questions of law and the issues of fact upon the proofs. In the latter action where the court has found that no cause of action in equity has been proved, the proper judgment is the dismissal of the complaint. Nothing appears upon the record to show that the court did not pass upon the disputed questions of fact. The decision involved a finding that the contract price of the labor and materials furnished in the three houses was the sum of $300 per house, which the defendants had paid to the plaintiffs, and that no labor and materials were furnished as to the other four houses, which finding required the court to dismiss the complaint, as- there was no claim in favor of the plaintiffs against the defendants proved for which the plaintiffs were entitled to file a mechanic’s lien ; and thus the plaintiffs are entitled to no relief in' this action.

It follows that the judgment appealed from was right and should be affirmed, with costs.

' Van Brunt, P. J., Barrett, Rumsey and McLaughlin, JJ., concurred. '

Judgment-affirmed, with costs.  