
    John Foshay et al., Pl’ffs, v. Frederick Robinson, Def't.
    
    
      (Court of Appeals,
    
    
      Filed January 31, 1893.)
    
    1. Mechanics’ lien—Abandonment by contractor.
    A contractor abandoned work on a building and the owner completed it in pursuance of a clause in the contract at a sum exceeding the amount remaining unpaid of the contract price. At the time of the abandonment the contractor had been paid the first two instalments and the work required to entitle him to the third was very nearly completed. Defendants Young and others had filed a lien for material exceeding the amount of work done on the third instalment. Held, that inasmuch as when the lien of the materialmen was filed there was, in fact, due by the terms of the contract from the owner a certain sum of money, the obligation of the owner inured to the benefit of the materialmen, subject only to such deductions as should be allowed for the expense of completing the work entitling the contractor to the third payment and for remedying defects in work.
    2. Same.
    The fact that eventually the owner expended, in entirely finishing his house,. more than remained due under the contract, cannot affect the owner’s obligation as it existed at the time when the lien of the material-men was filed.
    Appeal from judgment of the supreme court, general term, second department, affirming judgment entered on the report of a referee in an action to foreclose a mechanics’ lien.
    
      Wm. A. Boyd, app’lt in person;
    
      M. Banta, for resp’ts
    Young et al; Jas. G. Be La Mare, for def’t
    Eobinson; Arthur T. Hoffman, for resp’ts.
    
      
       Affirming 43 St. Rep., 20.
    
   Per Curiam.

The plaintiff, as a subcontractor, brought this action to foreclose a mechanics’ lien, filed for the value of materials, etc., furnished to the defendant Eobinson, who had contracted with defendant Boyd to build for him a house. By their contract the owner was to pay the contractor in instalments, fixed by different and designated stages of the work of building, with the proviso that the work should progress in a satisfactory manner, and that a certificate of the architects should be obtained as each of the stages was reached and a payment required. It was also provided that the architects’ certificate should not exempt the contractor from the obligation to correct previous defects in workmanship, etc. A further agreement provided for the finishing of the work by the owner in the case of the contractor’s neglect to supply a sufficiency of materials or workmen. The contractor not proceeding satisfactorily, the owner notified him that if, within a certain specified time, he did not supply a sufficient number of workmen, he, the owner, would finish the work, and, because of a failure to comply with the notice, he eventually did so. At that time the contractor had nearly completed the plastering on the budding, which, according to the contract, would have entitled him to the payment of the third instalment of $1,800. The referee before whom the case was tried found, with evidence in the case to support such a finding, that the plastering was substan-' tially completed, and that the sum of $284 would represent the value of the work to complete it. He also found, upon sufficient evidence, that there were expended by the owner, to remedy various defects in the previous building work dene, sums of money aggregating $485. These two sums he deducted from the amount fixed as the third instalment to be paid, and the balance remaining, of $1,031, he used in liquidating pro tanto the first lien filed, viz., of defendants Young and Tripp.

The principal question raised by the record relates to the referee’s decision in these respects. He decided that inasmuch as from the evidence it was clear that the owner had fairly expended in completing the building a sum in excess of what would be due the contractor if he had completed his contract, the contractor himself was not entitled to any lien ; but that, inasmuch as when the lien of the materialmen was filed there was, in fact, due by the, terms of the contract from the owner a certain sum of money, such an obligation of the owner inured to the benefit of the material-men, subject only to such deductions as should be allowed for the ■expense of completing the plastering and for remedying defects in the past work. With the referee’s reasoning and conclusion in that respect we are satisfied. The fact that eventually the owner ■expended, in entirely finishing his house, more than remained due under the contract, cannot affect the question of the owner’s obligation as it existed at the time when the lien of these materialmen was filed. Had the contractor wholly completed the building at the plastering stage, he would certainly have been entitled to the instalment, and its completion by the owner was in place of the contractor as to the materialmen, and as to them created the liability over, lessened only by what he was obliged to expend to bring the building up to the stage mentioned in the contract as the time for the third payment. The moneys were earned at that time and the liens of these materialmen at once attached.

The owner, who is appellant, insists upon the commission of errors by the referee in his findings, but a careful perusal of the record does not bear him out in that respect, nor in respect to the soundness of any exceptions.

The judgment should be affirmed, with costs to the respondents Young and Tripp, as against the appellant Boyd.

All concur.  