
    James A. Woolf and Eugene T. Woolf, Plaintiffs, v. Bertha L. Schaeffer, Pasquale Fasana, Domenico Barreca, William T. Hookey, Richard Furlong, Konrad Kroner and Robert F. Seiffert, Doing Business under the Name and Style of Standard Plumbing Supply Co., Eugenio Spadari and Antonio Liquori, Defendants.
    (Supreme Court, New York Special Term,
    November, 1903.)
    Mechanic’s lien-—• Failure of lienors to perform — Damages for their nonperformance.
    Where contractors, after agreeing with the owner of a lot to furnish him lumber, shingles and other materials to construct a house upon it, they to receive their first payment when it is “ fully inclosed and roof on ”, never furnish him the shingles which are necessary to roof it, delivery thereof having been prevented by severe storms in the West where the shingles were ordered by the contractors, they are not entitled to file a lien for their materials, while the 'owner, upon interposing a counter-claim, is entitled to recover of them damages for injuries done by the elements to the house while left unroofed as well as damages for the consequent loss of rentals.
    'Action to foreclose a mechanic’s lien.
    Langbein & Langbein, for plaintiffs.
    Henry M. Haviland, for defendant Schaefer.
    John R. Halsey, for defendant Furlong.
    Manheim & Manheim, for defendant Hookey.
    Thomas J. L. McManus, for defendants Fasana and Barreca.
    Henry M. Heymann, for defendants Spadari and Liquori.
   McLean, J.

Owning three lots of ground, numbered 31Y, 318 and 319, respectively, the defendant Schaefer, on De-cember 5, 1901, entered into contract with the plaintiffs, who were to furnish lumber, shingles and other building material for lot 318 for the srnn of $626.91, and to be paid $316 ■“ when fully inclosed and roof on,” and $310 “ when all is •delivered and house finished.” A substantially similar contract was made on the same day for material, at a slightly different price, for the improvement of lot Ho. 319. Hothing was furnished for lot Ho. 319, nor was any explanation made by the plaintiffs for nonperformance of their contract •respecting it, although demand for such performance was proven. When they had delivered a good part of the material for Ho. 318 the plaintiffs stopped delivery and filed ■notice of a mechanic’s lien February 15, 1902, and began later this action, February eighteenth. But they had not nor have they yet, delivered the shingles indispensable for the inclosure and roofing in of the building, the condition precedent to their becoming entitled to even the first payment. This failure to perform they attempted to excuse by testimony that the shingles were ordered in the West, and that they were disappointed by reason of storms. It was not provided, however, that they might set off their disappointment ■against the disappointment of their customer, whom their failure to perform what they had undertaken without reserve •caused severe loss direct and consequential. Moreover, the notice as filed covered all three lots, thus casting the blight •of a lien not only upon the property improved, but also upon the lot for which they furnished nothing, and even upon the lot which was not improved or to be improved ” at all. The plaintiffs were not entitled to the lien claimed, nor to any lien at the time the notice was filed, nor had they the cause of action alleged at the time this was commenced. The complaint is dismissed. Otherwise as to the counterclaim for the damage done by the elements to the house left unroofed, through the failure of the plaintiffs to perform their contract and for the consequent loss of rentals. These issues, having been raised by the affirmative allegations in the answer and the denials in the reply, and having been tried here, are to be disposed of upon the evidence submitted, according to which the defendant Schaefer appears entitled to judgment against the plaintiffs, for the sum of $2,830, together with costs and an allowance to the defendant Schaefer. The lien of the defendant Hookey is discharged and cancelled of record. He filed it February fifteenth. He had accepted for his indebtedness a note falling due four days later, besides giving an agreement in writing to extend the time of payment. He had not returned the note or relieved the maker, from liability thereon when he filed the notice of lien. The several liens of the other defendants are discharged and can-celled. Each is invalid as appears on the face of the notice. Furthermore defendants Fasana and Barreea had, and still have, a prior action pending to foreclose the same lien, and it was proven also that what work they did do was done improperly. Defendant Furlong failed to prove substantial performance of what he undertook. Defendants Kroner and Seiffert did not appear in person or by counsel at the trial. Defendants Spadari and Liquori appeared by counsel, and' one of them was sworn as a witness, but was precluded from testifying by showing that no answer had been served for them. Costs will be allowed to the defendant Schaefer against her several co defendants.

Judgment accordingly.  