
    Oscar G. Borkstrom, Respondent, v. Peter J. Ryan and The Metropolitan Surety Company, Appellants.
    First Department,
    May 6, 1910.
    Lien — mechanic’s lien — inconsistency of complaint and notice of lien — personal judgment.
    Where the complaint in an action to foreclose a mechanic’s lien proceeds on the theory that the contract between plaintiff and the principal contractor came to an end by reason of the latter’s refusal to permit plaintiff to continue the work, and involves the claim that plaintiff Avas justified in rescinding the contract and did rescind it, and the action is not upon the contract, but for the reason-, able value of the work done and materials furnished down to the date of the termination of the contract, while the notice of lien proceeds upon the theory that the contract remained in force after the plaintiff abandoned the work, and claims the whole sum mentioned in the contract, a judgment foreclosing the . lien will be reversed.
    Although the trial court found sufficient facts to sustain a personal judgment against the.principal contractor, yet, where the sufficiency of plaintiff’s reason for quitting the work seems doubtful, the judgment will be reversed in ioto and a new trial be granted.
    Appeal by the defendants, Peter J. Byan and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 2d day of April, 1908, upon the decision of the court, rendered after a trial at the New York Special Term, in an action to foreclose a mechanic’s lien.
    
      Frank Leo Ryan, for the appellants.
    
      Herbert Goldmark, for the respondent.
   Scott, J.:

The defendant Byan had a contract for the alteration of and the building of an addition to Public School No. 32 in the city of New York. He made a sub-contract to furnish, erect and. finish all the structural and ornamental iron work required under the first-mentioned contract. The plaintiff in turn made a sub-contract, with one Thacke to do the setting of the iron. Byan’s contract with the city-contained a time limit, but no time limit was included, in terms, in the contract between the plaintiff and Byan. The .work which Byan reserved to- .perform himself and that which plaintiff contracted to do were so dependent upon each other that delay by one. necessarily delayed"the other. The contract between plaintiff and Byan was for the lump sum of $3,525, and, as no provision was made for payments, as the work progressed, none was due to plaintiff until the completion of the contract.. There seems to be no doubt that there were delays on the part of both the plaintiff and Byan, and that by such delays each hampered the work of the other. It is not, however, necessary to consider who offended most in this particular until the latter part of August, 1906, when the plaintiff ceased working leaving a considerable part of the work which he had contracted to do undone. Up to that time he had furnished an amount of material and done an amount of work of the value, as found by the court, of the sum for which lie has recovered judgment. Having admittedly abandoned the work before its completion, the plaintiff, in order-to maintain an action for the value of the materials furnished and the work done, must justify his action in failing to complete his contract. This he attempts to do by the contention (in which he has been sustained by the Special Term) that the defendant Eyan refused to permit him to complete his contract, and practically forced him to discontinue the work. Beading the evidence from the printed page, and without the advantage of having observed the witnesses as they testified, we should find some difficulty in arriving at the same conclusion upon this point that was arrived at by the Special Term. There is, however, another objection to the judgment appealed 'from which- we consider to be fatal. That is the inconsistency between the cause of action sued upon and the statement of claim incorporated in ■ the notice of lien. The theory of the complaint is that on- or about August 25, 1906, the contract between plaintiff and Eyan came to an end by reason of Byan’s refusal to permit plaintiff to continue its performance, and the action is, not for any •amount coming due under the contract, but for the reasonable value of the materials furnished and work done down to the date upon which the contract was terminated. This involves the claim that plaintiff was justified in rescinding the contract, and that he did then rescind it. This is inconsistent with any claim that the contract survived the date when plaintiff left the work, or that any sum could thereafter become due under the contract. The claim as stated in the notice of lien proceeds upon an entirely different theory. The amount claimed is the whole sum mentioned in the contract .for the entire work, and distinctly proceeds upon the theory that the contract remained in force when the lien was tiled (nearly a month after the abandonment of the work) and that plaintiff was still continuing to perform it. If the contract remained in force after September 1, 1906, and plaintiff was still working under it, he cannot recover upon the cause of action stated in his complaint. If he rescinded the contract in August, 1906, so as to be entitled to sue upon a quantum meruit, his notice of lien falsely stated the particulars of his claim and grossly magnified its amount. In face of such an inconsistency the judgment, in so far as it forecloses the lien, cannot be sustained. The court has-found sufficient facts to sustain a personal judgment against the defendant Ryan, but in view of our doubts as to the sufficiency of plaintiff’s reason for quitting the work we are of opinion that the ends .of justice will be best served by reversing the judgment in toto..

The judgment should be reversed and a new trial granted, with costs to the appellants to abide the event.

Ingraham, P. J., McLaughlin, Clarke and Dowling, JJ., concurred. ,

Judgment reversed, new trial ordered, costs to appellants to abide event.  