
    Hedden Construction Company, Respondent, v. Procter & Gamble Company, Appellant, Impleaded with Others, Defendants.
    Second Department,
    October 12, 1909.
    Mechanic’s lien — damages — interest — contract — novation.
    Where a sub-contractor having filed a mechanic’s lien, after the bankruptcy of the contractor made a new agreement to complete the work of the contractor for an estimated sum, to be paid on the completion of the work and the dis- . charge of certain mechanics’ liens, a .further sum to be paid to the receivers of the principal contractor and distributed among the lienors, he is not, after the completion of the work, entitled to interest on the sums due the original contractor prior to the discharge of the mechanics’ liens, for the new agreement superseded the original contract.
    Appeal by the defendant Procter & Gamble Company from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Richmond on the 18th day of September, 1908, upon the decision of the court rendered after a trial at Special Term.
    
      John J. Kenney, for the appellant.
    
      Frederick Hulse [Arthur M. Mayer with him on the brief], for the respondent.
   Rich, J.:

This appeal is by the defendant owner from a judgment in favor of the plaintiff in an action brought to foreclose a mechanic’s lien.

The only question presented upon this appeal is whether the learned tidal justice erred in allowing interest upon the sums found to be due from the defendant owner, who had entered into a contract with Milliken Brothers, Inc., for the construction of several buildings upon its lands in which it was stipulated, amozig other things, that the work should be ■completed by January 1, 1907, and the contractors covenanted to pay $250 per day as liquidated damages for each day’s delay. Before the completion of the work the contractor went into bankruptcy, and receivers were appointed to wind up its affairs. At this time a delay of over five months had occurred.

The plaintiff, who was a sub-contractor, filed a lien upon the property for $91,493.18. Eight other liens were also filed; they all amounted in the aggregate to $113,735.48. Subsequently the receivers, the plaintiff, and the defendants Procter & Gamble Company and P. Hart & Sons entered into a contract in which the plaintiff a,greed to complete the contract of Milliken Brothers by finishing the work, and upon this being done appellant undertook to pay them $15,219.60, that being the estimated cost of the work, and on completion of the contract and upon the discharge of record of all of the aforesaid mechanics’ liens set forth in the agreement, promised to pay a further sum stipulated to become due to the receivers, which should be paid to the lienors as therein provided. The work was completed by plaintiff in accordance with its agreement, and on the 18th day of January, 1908, appellant certified that plaintiff was entitled to the said sum of $15,219.60.

It is conceded that upon the completion of the contract the sum of $27,486.46 became due to the receiver of Milliken Brothers from the appellant, and tlie different parties to the action claimed to share in this amount as lienors. Interest has been awarded upon this amount from the time the contract was finally completed.

In making the award of interest, I think the learned justice was in error. The lienors had failed to satisfy the liens mentioned in the contract under which the work was continued, and the appellant could not with safety have paid the balance due to the receivers of Milliken Brothers, with liens outstanding aggregating over $100,000. The amount of the owner’s liability was fixed upon the execution of the agreement witli the plaintiff and other lienors for completion, but this agreement superseded the original contract with Milliken Brothers, and the balance became payable “ on the completion of said contract and the discharge of record of all the mechanics’ liens set forth in Schedule marked ‘ C ’ and those filed by said Hedden and Hart.”

There is no evidence that these Hens have been satisfied. It follows, therefore, that the, judgment should be modified by striking out the allowance of interest, and as so modified affirmed, without costs of this appeal to either party.

Hirschberg, P. J., Jenks, Gaynor and Miller, JJ., concurred.

Judgment modified by striking out the allowance of interest, and as so modified affirmed, without costs of this appeal to either' party.  