
    Henry G. Silleck, Jr., Plaintiff, v. Isidor Robinson, Defendant.
    (Supreme Court, New York Special Term,
    September, 1908.)
    Mechanics’ liens — Notice of lien — Time of filing — Work or materials furnished on running account — Under entire contract — What constitutes entire contract.
    Where a lumber dealer delivers to two partners lumber for a building they are constructing under a contract to furnish them with all the lumber they require for the job, and before the building is finished they dissolve partnership and one of them continues the work and the lumber dealer declines to furnish the lumber . for the rest of the job on the sole credit of the partner continuing the work, except a small quantity for immediate use which he does furnish, a notice of lien filed by the dealer within ninety days after the furnishing of such small quantity, for the balance due for all the lumber furnished for the job, is in time to effect a lien for the whole of such balance.
    Action for the foreclosure of a mechanic’s lien.
    P. M. Crandell, for plaintiff.
    Morris H. Hayman, for defendant.
   Greenbaum, J.

On or about the 19th clay of September, 1906, the defendants Robinson and Resht, jointly interested in the building of two houses on Washington avenue in the city of New York, entered into a written agreement with the plaintiff, a dealer in lumber, for the supplying to them of all the timber and lumber of certain mentioned kinds and sizes that might he required in the construction of said houses, at fixed rates per thousand feet for the particular kinds and sizes actually delivered. Payments were to be made at certain stages of the work of construction, to the extent of sixty per cent, of the prices agreed upon, the balance of forty per cent, to be paid upon completion of contract. It was also provided that in case the plaintiff “ should wish a note at any time for the forty per cent, remaining, the parties of the second part (Robinson and Resht) hereby agree to give same signed by them individually.” On or about February 9, 1907, the defendant Robinson executed his promissory note for three months indorsed by the defendant Resht for the sum of $1,774.27, being forty per cent, of the value of the materials up to the date of the note delivered by plaintiff under the contract. At about the time of the execution of the note plaintiff was advised by the said defendants that their partnership in the building enterprise in question had been dissolved; that the defendant Resht had no further interest therein and would not be responsible for any lumber to be thereafter delivered. It was also asserted that the defendant Robinson alone would continue the work of construction. Plaintiff thereupon refused to deliver to Robinson any lumber on Robinson’s personal responsibility excepting a certain small quantity to the extent of $138.42, which was required for immediate use, pending arrangements to be made by Robinson to procure lumber elsewhere. The last item of lumber for which plaintiff was to hold Robinson alone answerable was delivered on March 12, 1907, and the last delivery of lumber before plaintiff was informed that Resht would not pay for any future deliveries was on the"31st day of January, 1907. On May 10, 1907, the plaintiff filed his notice of lien for $1,912.69, the aggregate of $1,774.27, the balance concededly owing by Robinson and Resht, and of $138.42, the amount due under the so-called personal obligation of Robinson. It thus appears that the notice of lien was filed within ninety days after the last delivery of materials to Robinson individually but more than ninety days after the last delivery to Robinson and Resht jointly. Defendants now urge that so far as the item of $1,774.27 is concerned the lien is ineffectual in that it was not filed within the time prescribed by statute. The complaint declares upon a quantum meruit and not for breach of the written contract. When plaintiff was advised by the defendants of the dissolution of their co-partnership and that the defendant Resht would not be responsible for any future deliveries, he had the right to decline to make any further deliveries and to sue upon a quantum meruit. Windmuller v. Pope, 107 N. Y. 674; Clark v. Mayor, 4 id. 338-343. The circumstance that plaintiff voluntarily waived a personal claim against Resht for the small amount of lumber delivered after February ninth did not affect his right to treat the last item of lumber furnished as a delivery by virtue of his contract with Robinson and Resht and to deem the contract terminated upon such delivery. The situation is not analogous to that found in Steuerwald v. Gill, 85 App. Div. 605, where, after the completion of all the work required under his contract with the defendant, the plaintiff performed additional work at the request of defendant’s wife. The filing of the lien in that case more than ninety days after the completion of the work under the original contract, but within ninety days after the performance of the extra work ordered by the wife, was held to be insufficient to maintain the lien for the balance due under the original contract, the court finding that there were two distinct and separate contracts. In the case at bar, however, the timber supplied after February was • part of that agreed to be furnished under the contract with Robinson and Resht. Robinson ostensibly continued to be interested in the buildings as owner and the materials delivered were for the improvement of the real property upon which the notice of lien was filed. Lien Law (Laws of 1897, chap. 418), § 3. It should also be borne in mind that this is an action in rem, and the question of the personal liability of Resht may be treated independently of that of plaintiff’s right to assert his lien against the real property. In my opinion, the plaintiff’s consent to make a further delivery after February ninth merely operated as fixing the time when the original contract was to terminate. For was it necessary to allege a nonperformance. The action was not brought under the contract as for a breach. The contract was merely evidentiary of plaintiff’s claim. . The point urged by defendant’s counsel that the notice of lien was invalid because verified by an agent of the plaintiff who was not necessarily familiar with the facts set out in the notice is sufficiently answered by the opinion of the court in Union Stove Co. v. Klingman, 20 App. Div. 449; affd. by the Court of Appeals, 164 N. Y. 589.

Judgment for plaintiff as prayed for.  