
    N. Dain’s Sons Company, Plaintiff, v. Union Free School District No. 7 of the Town of Cortlandt, Antonio S. Renza et al., Defendants.
    
    (Supreme Court, Westchester Special Term for Trials,
    December, 1913.)
    Contracts — with town for erection of school-house — lienors cannot recover of original contractor.
    Where the contract with a town for the erection of a new school-house provided that in case of a discontinuance of the work by the contractor “ he shall not be entitled to receive any further payment under this contract until the said work shall be wholly finished, at which time, if the unpaid balance of the amount to be paid shall exceed the expense incurred by the owner in finishing the work, such excess shall be paid by the owner to the contractor; but if such expense shall exceed such unpaid balance, the contractor shall pay the difference to the owner,” and the contractor, who abandoned the work on November 28, 1910, had been paid in full to November 5, 1910, for all work and materials under the contract, and it cost the school district over $20,000 in excess of the full contract price to complete the work that the original contractor agreed to do, and for the work done by him between November 5, 1910, and the date he abandoned the work no architect’s certificate was issued and no payment therefor made by the school district, lienors who furnished materials for the contractor cannot recover the value of the work done and materials furnished between said dates as under the express provision of the contract the original contractor can claim nothing therefor.
    Action by lienor to recover money alleged to be due under a contract which had been abandoned.
    Nathan P. Bushnell, for plaintiff.
    James Dempsey, for defendants.
    William A. Blelock, for defendants.
    
      
      See Grossman Bros. v. Dunaif Bldg. Co., 83 Misc. Repr. 101.
    
   Tompkins, J.

The plaintiff furnished materials to the defendant Renza, who had a contract with the. defendant Union Free School District No. 7 of the town of Cortlandt, to erect a new school-house for the sum of $126,833.36. The contract work progressed until November 28, 1910, when the contractor Renza, abandoned the work, and gave notice thereof to the hoard of education. At the time of such abandonment he had received on account of said contract the sum of $78,190, leaving a balance in the hands of the district of $48,643,36.

The school district thereupon made a contract with one Lowry for the completion of the unfinished schoolhouse according to the original plans and specifications, for the sum of $72,928.60, under which second contract the building was completed, and for which the district paid $20,000 and $30,000 in excess of the original contract price.

The original contractor Renza had been paid in full for all work and materials under the contract up to November fifth, for all of which work architect’s certificates and estimates had been issued, and monthly estimates and payments made thereon to the contractor according’ to the terms of the contract. For the contract work done by Renza between November fifth and November twenty-eighth, the date of abandonment, no architect’s estimate or certificate was made or issued, and no payment therefor made by the school district, and it is for the value of the work and materials performed and furnished by the contractor Renza during that period that the plaintiff and the other lienors now seek to recover from the school district.

Before the abandonment of the contract the custom was for the architect to make monthly estimates, issuing his certificates between the first and the. tenth days of each month, and thereupon monthly payments were made to the contractor. For the work done by the contractor after November fifth, no estimate was made or certificate issued, for the reason that the work was wholly abandoned on the twenty-eighth day of November; and the question now is whether the lienors are entitled to recover the value of the work performed and materials furnished between these two dates, namely, November fifth and November twenty-eighth.

Concededly it cost the district over $20,000 in excess of the full contract price to complete the work that the original contractor Renza agreed to do. Under these circumstances I think that the liens of the plaintiff and the other parties to this action cannot he' sustained, for the reason that at the time, of the filing of their notices of liens there was no money due to the contractor, because it is undisputed that it required much more money to complete the unfinished and abandoned contract than the entire unpaid balance of the contract price.

The defendant is a municipal corporation and was authorized by an appropriate resolution adopted by the qualified voters of'the school district to expend the sum of $150,000 for the erection and completion of the school building’. . That appropriation was exhausted by the payments actually made to Renza and Lowry, and the board of education was without authority to incur any further liability without another appropriation being voted. Education Law (Laws of 1910, chap. 140), § 314.

The plaintiff’s claim is that the contractor Renza “ earned some money by the work performed and materials furnished between the. 5th and 28th days of November.” While that is true, it is equally true that he forfeited whatever he earned during that period by his voluntary abandonment of the contract before he became entitled to a monthly payment, leaving work to be done under the contract that would cost for its completion far more than the balance remaining unpaid under said contract. The Renza contract contained a provision that in case of a discontinuance of the work by the contractor “ He shall not be entitled to receive any further payment under this contract until the said work shall be wholly finished, at which time, if the unpaid balance of the amount to be paid shall exceed the expense incurred by the owner in finishing the work, such excess shall be paid by the owner to the contractor; but if such expense shall'exceed such um paid balance, the contractor shall pay the difference to the owner. ”

Under this express provision of 'the contract it seems to me clear that the contractor can claim nothing for the work done after the fifth of November, and, of course, if the contractor would not be entitled to recover, the lienors cannot.

On the other hand, under this provision of the contract the contractor Renza would be liable to the school district for upward of $20,000. A lienor for labor or material performed for or furnished to the contractor for a public improvement has a lien only upon the moneys of the municipal corporation applicable to the construction of such improvement to the amount due or to become due on such contract. Lien Law (Laws of 1909, chap. 38), § 5.

In this case there was no money due the contractor after the fifth of November, because he forfeited all his rights under the contract before he became entitled to another payment, and the amount remaining unpaid of the original contract price, not being sufficient to complete the unfinished contract, was properly withheld by the district to apply on the cost of completing the contract and, when that was done, there were no moneys left over applicable to the construction of said school building or the payment of these liens.

I have examined the authorities cited by counsel for the lienors and am satisfied that each is clearly distinguishable from the case at bar, and that the defendant Union Free School District No. 7 is entitled to judgment dismissing the complaint upon the merits, and adjudging all of said liens to be ineffective, without costs.

Judgment accordingly.  