
    Henry Kohl, Appellant, v. Charles Fleming, James Spearing and Hugh Spearing, Respondents.
    (Supreme Court, Appellate Term,
    November, 1897.)
    Mechanic’s lien — Failure of claim of subcontractor because he had not performed — Effect on counterclaim of contractor.
    Where the claim of a subcontractor fails, as against the owner of premises,. because the subcontractor has not substantially performed and has refused to perform his contract with the contractors for the whole work, the counterclaim of the contractors, based upon work ’ which they were compelled to do in completing the work of the subcontractor, must also fail with the failure of the contract out of which it arose.
    Appeal from judgment rendered by the justice in favor of the defendants Spearing, upon their counterclaim in an action,, brought .by the" plaintiff in the First Judicial District Court, for the fore-J-closure of a mechanic’s lien.
    Simon Sultan for appellant.
    Andrew Wilson, for respondent Fleming.
   Bischoff, J.

The plaintiff claimed a lien, upon the premises owned by the defendant Fleming, for an unpaid balancé alleged to be due him under an entire contract whereby he had agreed to perform certain specific work, upon the interior' of the building in question, for the sum of $380', this agreement having been made with the defendants Spearing, who were alleged to have been under contract with the owner for the erection of the building, which was to be used as a stable.

Defendants Spearing had made payments to the plaintiff, on account of the contract, aggregating $313.80, and to-his claim for the balance, together with a demand'for the value of alleged extra work, they interposed a counterclaim of $30 for damages sustained by them because of his failure to- perform, denying that he was entitled to any thing under the contract or for extra work.

Upon the issue of performance the evidence was in direct conflict, but from, the testimony adduced for the defense, the trial court was well authorized to find that the plaintiff had not substantially fulfilled the agreed requirements and had refused to supply the omissions when his attention was called to them.

This being found as a fact, the plaintiff was not entitled to a recovery of the contract price, nor -could he demand that he be credited with that amount, less deductions for the necessary expense to which the defendants were put to when completing the work (Woodward v. Fuller, 80 N. Y. 312), since any intention to substantially perform was negatived by his refusal to complete when called upon.

The finding that no labor was furnished by him, beyond such as the contract called for, was also supported by acceptable evidence, and, so far as the judgment operated to deny the right to a lien or to a personal recovery against the defendants Spearing, it may not be disturbed.

The allowance to these defendants of $40, upon their counterclaim, however, was unauthorized, as a matter of law, apart from the objection that the award exceeded the demand of the answer and was not supported, in its extent, by the proof.

This counterclaim was for expense incurred by the Spearings in completing the work, which the plaintiff had assumed to perform, and this expense, so far as the evidence shows that it was incurred for labor which was called for by the plaintiff’s contract, was occasioned by the necessary employment of a carpenter’s labor for five-days at the rate of $3.50 a day, in all $17.50.

Had the plaintiff completed the work and thus become entitled to the agreed compensation, or had the defendants completed it for Ms account, the balance due Mm would have been considerably in excess of tMs sumy and wMle, for Ms nonperformance,_he could, not establish a right to that balance, the defendants’ counterclaim, of a lesser amount, must be held to have failed with the failure of the contract out of wMch it arose. Walker v. Millard, 29 N. Y. 375; Woodward v. Fuller, supra.

Therefore, the judgment must be. reversed and -a new trial ordered, with costs to appellant to abide the event, unless the respondents Spearing shall, witMn five days, stipulate that the judgment be modified by striking Out the provision for an affirmative recovery, and, as so modified, the judgment will be affirmed, without costs.

Daly, P. J., and McAdam, J., concur.

Judgment reversed and new trial ordered, with costs to áppellant to abide event, unless respondents Spearing, within five days, stipulate that judgment be modified, and, as so modified, judgment affirmed, with costs.  