
    Meyer Polstein and Max Orenstein, Respondents, v. Max Lax and Hyman Seplowitz, Appellants, and Morris Kutnick, Defendant.
    (Supreme Court, Appellate Term,
    July, 1908.)
    Mechanic’s lien — Rights of subcontractors — Necessity of liability to principal contractor.
    Where a contractor for making improvements upon a building stopped, the work, and the owners completed it at a cost in excess of the balance of the contract price, an employee of the contractor acquired no lien against the building under section 3 of the Lien-Law (L. 1897, ch. 418), where his notice of lien was filed before the contractor stopped work, and before he had earned anything under the. contract.
    Appeal by defendants from a judgment of the Municipal Court of the city of New York, second district, borough of Manhattan, rendered in favor of the plaintiffs.
    Gantz, Neier & McKennell, for appellants.
    Benjamin Steinman, for respondents.
   MacLean, J.

Morris Kutnick, the defendant who does not appeal, undertook to lath and plaster a building owned by the defendants Lax and Seplowitz for a sum agreed upon, which he testified in one place was $510, and in another said it was $625. Both owners say the price was $510. Delaying beginning work for a couple of days, he said he could not get money and induced the defendants to buy materials amounting to $811.98. He received from the owners in three sums $150 and paid some of the workmen, but not the plaintiffs, who filed a mechanic’s lien. Then Kutnick stopped the work, which he did not resume. After giving him notice to complete his contract within three days, the owners finished it at their own cost through one Zambetti for $115, concededly a very reasonable sum, which, with the cash paid Kutnick, $150, and the material bought on the request of Kutnick, $311.98, made an outlay of $576.98; so that, treating the completion as on Kutnick’s behalf, there was an extra disbursement of $66.98 on his account, if the agreed price was $510, and a sum of only $48.02 coming to him, if that price was $625.

Ho suggestion of the opinion of the learned justice respecting the price agreed upon for the work appears. The case was tried, seemingly, upon the theory that, as the notice of lien was filed before the contractors stopped and so before the price for doing the work was exhausted, the workmen’s claim for wages was not affected by the fact that it cost the defendants more than the balance of the contracted price to complete the undertaking; or, as their counsel states it: “ The plaintiffs, having filed their notice of lien before the defendant Kutnick committed a breach of his contract with the owners, were entitled to look for their earnings to the premises upon which the work was performed.” This sounds novel; it is not new. It is a recurrent'heresy appearing under the old statute and under the present. It is professedly supported by the fact that section 3404, Code of Civil Procedure, stating what must be set forth in a complaint in a court not of record, does not mention averment of indebtedness by the owner to the workman, lienor or his employer; and it rests probably, also, upon a notion that property should stand for work put upon it, whether or no the laborer be in privity with the owner. But, as the statute provides that only a laborer who performs labor for the improvement of real property with the consent or at the request of the owner (Lien Law, § 3) shall have a lien, it logically limits the lien to a sum not greater than the sum earned and unpaid on the contract at the time of filing the notice of the lien, and any sum subsequently earned thereon. (Id., § 4.)

Since, in the absence of agreement otherwise, work, whether measured by the job or by time, must be finished before there is a right to pay for it, nothing had been earned by their employer, the contractor Kutnick, when the plaintiffs filed their notice. Nor was any sum subsequently earned for him on the improvement, if, as seems the fact, Kutnick undertook performance for $510. If the price was $115 more, the sum coming- to him would be but $48.02, or less than a third the sum the plaintiffs have recovered. The judgment should be reversed.

Gildersleeve and Seabury, JJ., concur.

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