
    The J. J. Newman Lumber Company, Plaintiff, v. J. Cady Wemple et al., Defendants.
    (Supreme Court, Monroe Special Term,
    October, 1907.)
    Mechanics’ liens—Foreclosure — Costs — Bight to costs in general — Amount and allowances.
    Where the State unlawfully cancels a contract made by it for the performance of certain work, the other party to the contract is entitled to recover the amount actually earned upon the contract at the time of its cancellation; and where in an action to recover such amount the plaintiff is obliged to do a great share of the work in establishing liens of which the State had due notice, but against which it did not protect itself, and the amount of all liens is necessarily involved in the litigation, the plaintiff will be granted besides its taxable costs an extra allowance of five per cent, upon all the claims established upon the trial, it appearing that the case was both difficult and extraordinary.
    In such a case, attorneys who appeared for a large number of labor lienors and who performed a large amount of labor outside of making proof with reference to the various liens represented by them will be awarded the usual costs for each lienor represented by them up to the time of trial and one trial fee.
    Motioe for costs and’ extra allowance. The opinion .states the case.
    Lewis & McKay, for plaintiff.
    John Desmond, Deputy Attorney-General, for State of Kew York.
   Clark, J.

In the decision heretofore rendered in this action it was held that the contract in question was can-celled by the State, without sufficient cause, on the 20th of January, 1906. The cancellation of the contract being unlawful, the State is precluded from recovering damages against the contractors, and they would be entitled to recover whatever amount had been actually earned upon the contract at the time of its unlawful cancellation by the State.

If the amount which had been actually earned equalled the contract price, then the full amount could be recovered; and, if moneys had been actually earned under the contract at the time of the cancellation, the issuing of a certificate by the State Architect certifying the amount due would not be necessary as a condition precedent to payment of such moneys earned, for if the contractors had earned a certain amount of money, and then the contract was unlawfully cancelled by the State, they are surely entitled to recover from the State the amount actually earned upon the contract at the time of its cancellation.

• If the State is seemingly compelled to pay more than the unpaid balance of the contract price, it is for the reason that the State continued payment to the contractors after liens were filed without protecting itself against liens, of which it had due notice.

In that view of the case it seems to me that the amount earned at the time of the unlawful cancellation of the contract was as follows:

This amount the contractors had actually earned under their contract at the time of its unlawful cancellation, when they were driven from the work by the action of the State authorities.

The riplaintiff and a large number of defendant lienors ask for costs, and the plaintiff asks for an extra allowance.

This case was in some respects difficult, and in a good many respects extraordinary.

Costs are in the discretion of the court (Code Civ. Pro., §§ 3230, 3411) and it can also grant an extra allowance in cases of this character. Code Civ. Pro., § 3253; Horgan v. McKenzie, 17 N. Y. Supp. 174.

An extra allowance of five per cent, of the amount of the plaintiff’s claim would be entirely inadequate compensation for the plaintiff for the extraordinary labor involved in the preparation and trial of this action; and I think the plaintiff should be entitled to not only the regular taxable costs, but an extra allowance of five per cent, upon all of the claims established on the trial.

The amount of all the liens was necessarily involved in the litigation, and the plaintiff was obliged to do a great share of the work in establishing them; and it seems that the extra allowance on the entire amount involved, being here the amount of the liens established, is just and proper, and the court has power to grant it. Carney v. Reilly, 18 Misc. Rep. 11.

Messrs. Peck & Whitbeck appeared for a large number of labor lienors, and it was stated in open court that they performed a large amount of labor outside of making proof with reference to the various liens represented by them; and they are awarded the usual bill of costs for each lienor represented by them up to the time of trial, and one trial fee.

F. M. Whitney and James A. VanVoast, respectively, are allowed taxable costs on each claim represented by them, and one trial fee, but no extra allowance.

As to the various other applications for allowances of costs in this- matter, it appears that, excepting the counsel who have been granted allowances as above stated, their labors consisted of making formal proofs of the liens represented by them, and it does not seem to be proper to award costs, except as above. Ottman v. Schenectady Realty Co., 119 App. Div. 736.

While the case was difficult and extraordinary, the labor was performed very largely by the plaintiff’s attorneys and by Messrs. Peck & Whitbeck, F. M. Whitney and James A. VanVoast; and, so far as I am advised, the labors of other counsel engaged in the case were confined principally to making formal proofs of their respective claims, and for that reason costs should not be allowed.

As to the claim between the trustee in bankruptcy and the State, the jurisdiction of the court to pass upon that seems somewhat doubtful, and it is, therefore, not determined here, but additional findings may be submitted to the effect that, on January 20, 1906, the State cancelled the contract in question without good and sufficient cause, and that such cancellation was wrongful; also that there became due to the contractors upon such cancellation sums which had been earned by them under the contract, and were unpaid, aggregating at least the sum of twenty-four thousand one hundred ninety-six dollars and forty-eight cents, with interest thereon from the date of the cancellation of the contract.

Costs to be allowed as above indicated.  