
    George D. Beattys, as Trustee in Bankruptcy for Martin V. Cook, Respondent, v. Arthur C. Searles and Others, Defendants, Impleaded with The Union Surety and Guaranty Company, Appellant.
    
      Mechanics lien — when not void on the ground that it claims an exaggerated .amount, — an objection that a claim is on quantum meruit and not supported bp the proof is not mailable in the first instance on appeal—when the claim does not rest on a quantum meruit.
    A mechanic’s lien for work done under a contract, by which the lienor agreed to furnish certain iron work for the sum of §10,105, was filed at a time when the first and second installments, amounting to $3,500, had become due, of which but $1,000 had been paid. ' The notice of lien was filed for $9,150, which was the amount due if the contract had been carried out. It stated,, however,. “That all the materials and work for which the lien is claimed and the labor performed or to be performed and materials furnished or to be furnished have been actually furnished and performed except materials consisting of iron beams; columns, stairs, fire escapes, etc., and labor in putting same in of á value not to exceed $6,650.” The lien was discharged by a bond given in the sum of $3,000.
    
      Held, that a judgment entered in an action to enforce the lien adjudging that there was §2,545 due to the lienor should not-be reversed on the ground that the lien was filed for an exaggerated amount as, when read as a whole, it appeared that the amount which the plaintiff actually claimed was only §2,500, and as it was apparent from the amount of the bond given to discharge the lien that the defendant had not been injured by the recital in the notice of lien that the plaintiff had a lien for $9,150.
    Van Brunt, P. J., dissented.
    
      Semble, that the objection that a judgment in favor of the plaintiff could not stand because the action was brought upon quantum meruit, and no evidence was given upon the trial as to the actual value of the labor and materials furnished by the plaintiff, the only proof upon the subject being the amount fixed by the contract as payable in certain installments, is not available on appeal where the question was not raised at Special Term.
    
      
      Semble, that where a building contractor, after performing, his contract to. an extent entitling him to be paid certain installments thereunder, is prevented from completing the work on account of the insolvency of the builder,' an action brought by the contractor to recover the amount of the installments to which he is entitled is not an action on quantum meruit.
    
    Appeal by the defendant, The .Union Surety .and Guaranty Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Yew York on the 12th day of March, 1902, upon the decision of the court rendered after a trial at the Mew York Special Term in an. action to foreclose a mechanic’s lien.
    The action herein was originally brought by Martin Y. Cook to enforce a mechanic’s lien which he had filed against property located at Eighty-sixth street and Amsterdam avenue owned by the defendants Searles and Stevens with whom he had entered into a written contract to furnish iron work for. the sum of $10,105, of which the first and second installments amounting to $3,500 had become due and but $1,000 was paid. He included as defendants besides Searles and Stevens, the Union Surety Company, their surety upon a bond of $3,000 discharging the lien, and other lienors, who defaulted. Subsequently Cook was, upon his own petition, adjudged a bankrupt, and his trustee in bankruptcy was substituted as plaintiff in this suit.
    . The lien instead of being filed for the amount of $2,500, which it is sought in this action to recover, was filed for the sum of $9,150, the amount due if the contract had been carried out; but the notice of lien recited “ That all the materials and work for which the lien is claimed and the labor performed or to be performed and materials-furnished or to be furnished have been actually furnished and performed except materials consisting of iron beams, columns, stairs, fire escapes, etc., and labor in putting same in of a .value not to exceed $6,650.” At the opening amendment of the answer was allowed that the lien was filed for an exaggerated amount.
    Upon the testimony adduced the court found that there became due from the owners $3,500 “ upon and according to the terms of "the said contract,” of which $1,000 was paid and that $45 was due for extra work. From judgment entered in accordance with these findings, the defendant surety company appeals.
    
      
      Mandeville C. Jacobus, for the appellant.
    
      Thaddeus D. Kenneson, for the respondent.
   O’Brien, J.:

Two grounds are relied upon to reverse the judgment, of which the first is that the lien was fraudulent in exaggerating the amount due. The answer to this is that it was neither intentionally false nor in fact misleading. When it is read as a whole, the statement of the amount cannot at best be construed into anything more than a mistake in the method of formulating the claim, because, although the notice first recites that the plaintiff has a lien of $9,150, which was the entire contract price less what had been paid, thereafter it . states that there remained to be done by the plaintiff under the contract about $6,500 of work, which sum, if deducted, shows-that the amount the plaintiff actually claimed and which in this manner appeared from the face of the lien was but $2,500. That-this- is the true construction to be taken of the wording of the lien,, and that the defendants were in no way injured thereby, appears-from the fact that the bond given to release it was in the sum of but $3,000, which included in addition to the claim of $2,500, sufficient to cover interest and costs.

The appellant’s second contention is that-the judgment cannot; stand because the action was brought upon quantum meruit and no. evidence was given upon the trial as to the actual value of the labor and materials furnished by the plaintiff, the only proof offered being the amount fixed by the contract as payable in the first installments for such work. To this claim there are two sufficient answers.. One is that the question was not raised at Special Term, and the-other that even if such objection had been made it Would not have-been available for the reason that it rests upon a false premise, the appellant being in error in asserting that the action was framed upon the theory of a quantum, meruit. What the plaintiff alleged in his-complaint and what was proved upon the trial was that he was entitled to receive according to the terms of the contract certain payments or installments, and that up to the point that he was permitted to do the work, and when he was stopped on account of -the insolvency and inability of the builder to continue, there was due to him under the contract the payment or sum to recover which the suit was instituted. In this respect, therefore, the case is clearly distinguishable from Wyckoff v. Taylor (13 App. Div. 240).

The judgment accordingly should be affirmed, with costs.

Patterson, McLaughlin and Laughlin, JJ., concurred; Van Brunt, P. J., dissented.

Van Brunt, P. J.

(dissenting):

I dissent. The lien filed was so grossly excessive that it could not have been filed in good faith.

Judgment affirmed, with costs.  