
    Charles L. Blakeslee, App’lt, v. Samuel T. Fisher, Impl’d, Resp’t
    
      (Supreme Court, General Term, Third Department,
    
    
      Filed December 8, 1892.)
    
    1. Mechanics’ lien—Contract—Building—Completion by owner.
    A building contract contained a provision allowing the owner to complete the work in case of the contractor’s default, and deduct the expense from the contract. Held, that after making such deduction the balance, if any, would be payable to the contractor.
    3. Same.
    Such contract contained the provision that should the owner, during the progress Of the building, request any alterations or additions from the contract, he 'should be at liberty to do so, and that it should not 'affect the contract, bat fee added to or deducted from the amount^ of the same at a fair valuation. Slxtr'a work Was done 'tt> the amount of $335', but work Under the-contract 'to- the laeaeuilt ©f «$1:31 Was left undone. A sub-contractor filed a mechanic’s lien upon the property, andan action was brought to foreclose the same. Held, that the difference between the value of the extra work and the work unfinished, should be applied in satisfaction of the lien.
    Appeal from a judgment entered upon the report of a referee, adjudging plaintiff’s lien against certain real property of the defendant, Samuel T. Fisher, void, and of no effect, and dismissing plaintiff’s complaint upon the merits as to the defendant, Samuel T. Fisher, with costs.
    Action to foreclose a mechanic’s lien filed by plaintiff, a subcontractor.
    
      Pratt & Logan, for app’lt; Edward W. Nugent, for resp’t..
   Herrick, J.

I think the referee erred in his conclusion in this case. Under the contract the owner could go on and complete the work if the contractor refused or neglected to do so, and deduct the expenses from the amount of the contract

If, after doing so, there is a balance left, or if the owner does not choose so to do, then after deducting what it would cost to complete the work from the contract price there is a balance left, I think the lienor is entitled to that balance. Wright v. Roberts, 43 Hun, 413; 6 St. Rep., 769; affirmed without opinion in 118 N. Y., 672; 28 St. Rep., 980; Foshay v. Robinson, 43 St. Rep., 20 ; Graf v. Cunningham, 109 N. Y., 369; 15 St Rep., 524; Van Clief v. Van Vechten, 130 N. Y, 571-581; 42 St. Rep., 736.

The last case was one where the owner had gone on and completed the contract upon the default of the contractor, and the court said: “The difference between the sum thus expended and the aggregate amount unpaid on the contract with Smalle, upon completion of the entire work, became due under the contract; to the extent of that sum, being the difference between $2,023 and $1,905.20, the lien of the plaintiffs attached, and they are entitled to a foreclosure for that amount.”

In Larkin v. McMullin, 120 N. Y., 206; 30 St. Rep., 902, and Hollister v. Mott, 132 N. Y., 18; 42 St. Rep., 848, there was not a substantial compliance with the contracts, and neither was there any provision in the contracts by which the owners could complete the contracts in case of the contractor’s default; and in those respects the cases are distinguished from those heretofore cited, the principles of which are recognized in both the Larkin and Hollister cases.

In the case before us, as we have seen, there was an express provision allowing the owner to complete the work in case of the contractor’s default, and deduct the expense from the contract; the plain inference from that, it seems to me, is, that after making such deduction the balance, if any, would be payable to the contractor.

The fact that the owner has not seen fit to exercise his option to go on and do w'hat he claims tire contractor refused or neglected to do, seems to me to make no difference in principle, where the expense of doing the things, not dene can be ascertained. In this, case the referee has found the specific things that the contractor refused or neglected to do, and: the- dost or expense of each item, and after deducting such cost or expense from the contract price there is a balance left, and to that balance I think, under the principles of all the cases hereinbefore referred to, the plaintiff is entitled.

There is also another aspect of the case under which I think the plaintiff is entitled to recover.

The referee has found that the plaintiff has not substantially performed his contract, a conclusion in which I cannot concur, but which I will not discuss, but assume to have been correctly found, and the final decision arrived at by him is based upon that conclusion, that the contract not being performed by the contractor there is nothing due him from the owner, and that there being nothing due the contractor there is nothing to which the lien can attach.

The contract price was $2,700. The referee has found that $2,509 was paid upon the contract. That by consent of the owner work amounting to the sum of $102.69 has not been performed by the contractor, and that work amounting to the sum of $59.25 has been left unperformed without the consent of the owner.

Therefereehas also found that the contractor has performed extra work to the amount of $235.99. The contract contained this provision as to extra work : “ Should the owner, at any time during the progress of the said building, request any alterations, deviations, additions or omissions from the said contract, he shall be at liberty to do so, and the same shall in no way affect or make void the contract, but will be added to or deducted from the amount of the contract, as the case may be, by a fair and reasonable valuation.”

An almost identical provision in a contract was passed upon in Garnsey v. Rhodes, 45 St. Rep., 145, and it was there held that the contractor could recover the value of the extra work, although he had not completed the contract according to its terms.

The amount of the extra work is money due the contractor. Woodward v. Fuller, 80 N. Y, 312. In this case it is money due over and above all payments made, and over and above deductions to be made on account of work omitted to be done both with and without the consent of the owner; and it is money that can be and should be applied in satisfaction of the lien.

For these reasons the judgment should be reversed, the referee discharged, and a new trial granted, costs to abide the evenk

Mayham, P. J., and Putnam; J., concur.  