
    William J. Dempsey, Plaintiff, v. Mount Sinai Hospital et al., Defendants, Thompson-Starrett Company, Respondent, and William Nutley et al., Appellants.
    
      Dempsey v. Mount Sinai Hospital, 186 App. Div. 334, affirmed.
    (Argued December 10, 1919;
    decided January 6, 1920.)
    Appeal from a judgment, entered March 26,1919, upon an order of the Appellate Division of the Supreme Court in the first judicial department reversing a judgment entered upon a decision of the court on trial at Special Term in an action to foreclose a mechanic’s lien and directed a dismissal of the liens of the appellants herein. The defendant Mount Sinai Hospital entered into a contract with the defendant Thompson-Starrett Company to make certain improvements upon its hospital property. The Thompson-Starrett Company made a contract with the defendant the F. H. Chapman Contracting Company to do the rock and earth excavation for the improvement. This defendant Chapman Company abandoned the work it was doing for the Thompson-Starrett Company on September 18, 1916. The three appellants had claims against the Chapman Company at the time of the abandonment of the work by that company. At the time of this abandonment there were no moneys due from the Thompson-Starrett Company to the Chapman Company, nor did any moneys subsequently become due. Progress payments were to be made of eighty-five per cent of the value of the work at contract rates as the work progressed. The remaining fifteen per cent was to be paid to it forty days after the entire completion of the work. The appel lants claim that their liens attach to this reserve notwithstanding it was not due and notwithstanding that it cost the Thompson-Starrett Company more to complete the work than the contract price.
    
      Harry Lesser, Moses Cohen and Patrick J. McDonald for appellants.
    
      Frederick Hulse for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Hiscock, Ch. J., Hogan, Cardozo, McLaughlin, Andrews and Elkus, JJ. Dissenting: Pound, J,  