
    George Murphy, Respondent, v. The City of Watertown and John Hardiman, Appellants, Impleaded with Frank H. Walts, as Treasurer, of Said City, and Others, Defendants.
    Fourth Department,
    May 2, 1906.
    Mechanic’s lien—when personal judgment against contractor not warranted on alleged personal promise to pay —when such contract void under Statute of Frauds—lien attaches to surplus after completion of building by owner.
    Iu an action to foreclose a mechanic’s lien it is error to admit evidence of a personal oral agreement by the contractor to pay mechanics employed by a subcontractor, when the agreement or facts showing the same are not alleged in the cpmplaint,. and there is no demand for a personal judgment against the ■ contractor. Moreover, when the sub-contractor has been overpaid, such a promise by the contractor would be without consideration and void under' the Statute of Frauds as a promise to pay the debt of another. Moreover, a lienor who establishes his lien is' not entitled to a personal judgment, (tiode Civ. Proc. § 3413.)
    But lienors (employees of a sub-contractor who has abandoned his contract) are •entitled to a lien upon the excess of the amount unpaid such sub-contractor on his contract over the cost of completing the building.
    Appeal by the defendants, The .City of Watertown 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 Jefferson'on the 9th day of November, 1904, upon the decision of the court rendered after a trial at the Jefferson Special Term.
    
      John Conboy, for the appellant John Hardiman.
    
      John B. Muzzy, for the appellant City of Watertown.
    
      I. R. Breen, for the respondent.
   Nash, J.:

The action was brought for the foreclosure of several mechanics’ liens filed by the plaintiff and his assignors for work and .labor upon a new high school building built, or in process of construction, for the city of Watertown by the defendant Hardiman. "The judgment decrees that the liens are valid against the funds held by the city of Watertown applicable to the construction of the high school building at the time of the commencement of the action, ánd judgment is also -entered against the defendant John Hardiman for the amount of the liens, with costs against- him personally.

The defendant, the- City of Watertown, through its board of-education, and John Hardiman, entered into a contract on October 3, 1901, for the erection of a new high school building on Sterling street for the sum of $67,839. The contract contained the condition that eighty per cent of the contract price should be advanced by the city at certain stages of the work, and the balance retained by it. until sixty days after the final completion of the building and its acceptance by the city.

On March 26, 1903, the defendant .Hardiman sublet" a portion of the carpenter work to Andrew Fennen for the sum of $2,400, eighty per cent of which was to be advanced as the work progressed and the balance upon the completion of the contract. Fennen hired the plaintiff and the plaintiff’s assignors as foremen "and carpenters ' to perform the work under his contract. They worked until October 26, 1903. Hardiman at that time had advanced to Fennen upon the contract $2,051.15. That .sum exceeded the eighty per cent which the contract provided should be advanced as the work progressed. At that time there was" one week’s. pay, amounting to $(180.86, due fjom Fennen to- the .plaintiff and his assignors. Fennen applied to Hardiman for money to pay the plaintiff and said assignors; Hardiman refused to a'dvance the money upon the ground that he had overpaid Fennen upon his contract. Fennen thereupon abandoned the work, leaving his contract' about two-thirds Completed. The finding of the court below is that Hardiman promised and agreed with Fennen to pay Fennen’s indebtedness to his men, but' afterwards and on the same- day declined bécause of differences arising between Hardiman and the men as to their continuance of the work.

The court below also found as follows:

“ Twelfth.' That the" defendant Hardiman failed to live up to the terms of the contract with the defendant Fennen, in that the said Hardiman did not keep the men under the defendant Fennen’s employ supplied with materials with which to perform the "work which,said Fennen was to perform; that the defendant Fennen liad a claim against the defendant Hardiman for, some extra work which Fennen performed for Hardiman outside of the work to be performed under said contract between Hardiman and'Fennen, and both of which claims were, as understood by both parties, released upon the defendant Hardiman agreeing to pay the men the wages for which they subsequently filed the liens in question.”

The complaint does not contain any allegations relative to the non-performance of the contract by either Hardiman or Fennen, Or to a release by one to the other of any claim of non performance of the contract, and is entirely silent upon the subject-matter of said 12th finding. There is no evidence in the record to sustain said finding.

The complaint does not allege that Hardiman promised to pay Fennén’s. indebtedness to his Workmen, nor are there any facts' alleged in the complaint upon which to base a finding of any such promise, or for a personal judgment against the defendant Hardiinan, and no demand is made in the complaint fór a personal judgment against him. ■ '

The evidence of a promise by Hardiman to pay Fennen’s past indebtedness to his workmen, when offered upon the trial, was objected to as incompetent under the pleadings, and was received under excéption..

It was error to receive the evidence, and the promise' if made' was void a‘s being without consideration, and as-a promise to pay the debt of another, void by the Statute of Frauds. (See Pers. Prop. Law [Laws of 1897, chap. 417], § 21.)

The complaint alleges that at the time of filing tlie notices of lien by the plaintiff and his assignors, Hardiman had so far completed his contract as to entitle him to the payment of $60,000 by the-city of Watertown, and that at the time of the commencement of the action there remained in the possession of the city the sum of $8,000, which the city was to retain until the completion of the building and its acceptance by the city.

It appears that at the time of the trial the building' was' then substantially completed, and that Hardiman'had been paid the further sum! of $4,000.

In Van Clief v. Van Vechten (130 N. Y. 571) it was held that’ under the Mechanics’ Lien Law of 1885 (Laws of 1885, chap. 342), if a contractor abandoned the contract and the owner completed the building in accordance with and under a provision of the contract providing, for it, the lien attached .to the extent of the difference between the cost of completion and the amount unpaid when the lien was filed. This lien is embodied in the Lien Law of -1897 (Laws of 1897, chap. 418, § 4), which i,n giving the lien provides that “ If labor is performed for or materials furnished to a contractor or sub-contractor for an improvement, the lien shall not be for a sum greater than the sum earned and unpaid on the contract at the time of filing the notice of lien, and any sum subsequently earned thereon.”

If the difference between the cost of completion and the amount unpaid to Fennen at the time the notices of lien were filed was less than the amount unpaid to him upon his contract, so that there is something earned by Fennen upon his contract, the liens will attach thereto.

The judgment establishing the liens should be modified accordingly, and as so modified affirmed, and adjudging further, that the amount, if any, earned by Fennen upon his contract be ascertained by the court and entered at the foot of the decree. ■

The personal judgment against Hardiman is erroneous upon the grounds already stated:

First. That at the time of the filing of the liens there was nothing due to Fennen upon his contract.

Second. That the proof of the alleged promise of Hardiman to pay the indebtedness of Fennen to his employees was not within the issues, and the promise, if made, was without consideration and, as a "promise to pay Fennen’s past indebtedness, Void within the Statute of Frauds.

And also that under section 3412 of the Code of Civil Procedure a personal judgment can be recovered by the plaintiff only in' case he fails to establish a valid lien.

McLennan, P. J., concurred ; Spring, Williams and Kruse, JJ., voted for reversal and the granting of a new trial'as to all defendants.

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