
    Josepf Gallick, Plaintiff, v. Charles Engelhardt et al., Defendants.
    (Supreme Court, New York Special Term,
    November, 1901.)
    Mechanic’s Lien Law, L. 1897, ch. 418, § 3 — Consent or request of owner — Invalidity of lien precludes both a personal judgment against the owner and a judgment against the surety for a discharge of the lien.
    Where a contractor, having two separate contracts for excavating two distinct lots, agrees with their owner that payments indiscriminately made by him upon both lots shall apply to only one, that they are sufficient to pay in full for excavating that one and that any lien for work unpaid shall thereafter attach only to the other, he is not authorized by the Mechanic’s Lien Law in subsequently filing a lien against both for an alleged balance due him for work done on both, as the effect would be to give him a lien on the released lot for work done on the one not released and vice versa—without the consent or request of the owner.
    Where a lien is invalid no judgment can be given, in an action for Its foreclosure, against the owner personally or against a surety upon a bond given to discharge the lien.
    Action to foreclose a mechanic’s lieu.
    Wallace A. Kroyer, for plaintiff.
    William Sutphen, for defendant Englehardt.
    Van Schaick, Norton & Quinby, for defendant The Union Surety & Guaranty Company.
   Scott, J.

The plaintiff made two separate contracts with the defendant Charles Engelhardt for the excavation of two non-contiguous lots, one on Tenth avenue and one on West Eifty-first street. The performance of the contracts proceeded concurrently and payments were from time to time made on account, the receipts applying the payments to both contracts, and not to either one separately. In this way $1,3,00 was paid, the contract price for excavating the Tenth avenue lot being $1,720, and the contract price for excavating the Fifty-first street lot being $1,058, making an aggregate of $2,778, in addition to which there was due to the plaintiff for surveying $25, making his total claim $2,803, of which there remained unpaid $1,503. After the completion of the work by agreement between the parties the receipts applying the payments to both contracts were given up, and the plaintiff, to enable defendant to obtain a loan on the Fifty-first street property gave a receipt for $1,058, the full amount of the contract price for excavating the Fifty-first street lot. Thus, by agreement of the parties, the payments made up to the full contract price for excavating the Fifty-first street lot were appropriated to the satisfaction of the plaintiff’s claim under the contract for excavating that lot, he thereafter had no claim upon that lot under his excavation contract, and whatever right he had to apply to the property for the payment of the sum still due him attached only to the Tenth avenue lot. The plaintiff also furnished sand and other materials, partly for use on the Tenth avenue property and partly for use on the Fifty-first street property. Subsequently the plaintiff filed .a notice of lien under the Mechanic’s Lien Law against both pieces of property, in which he stated his claim as follows:

“ The labor performed and the materials furnished and the agreed prices and value thereof are as follows:

“ To the agreed price and value for excavating two lots, one at No. 657 Tenth avenue.............. $2,803 00

To agreed price and value of sand furnished for building purposes ......................... 200 00

“ To agreed price and value of planks furnished.... 45 00

To agreed price and value of team hire in running scaffolding............................. 5 00

$3,053 00

“ The amount unpaid to said lienor for such labor and materials is one thousand seven hundred and fifty three dollars ($1,753) with interest thereon from the 29th day of October, 1900.”

He then, in his notice of lien, declared that the property subject to the lien was the property on Tenth avenue, and the property on Fifty-first street: An action was brought to foreclose the lien, and a complaint served which contained three counts, one for $1,503, due for excavating on the Fifty-first street property, one for sand, planks and team hire furnished to the Fifty-first street property to the value of $190, and the third for sand furnished to the Tenth avenue lot to. the value of $60. It seems to be clear that the plaintiff’s notice of lien was unauthorized by statute and void, and that he never acquired a valid lien thereby upon either lot. ' The Mechanic’s Lien Law (Laws of 1897, chap. 418, § 3) authorizes a lien for the principal and interest of the value or agreed price of labor or materials performed or furnished with the consent or at the request, of the owner “ upon the real property improved or to be improved.” In the present case the plaintiff undertook to establish a lien upon the Fifty-first street house for excavation done and materials -furnished to the Tenth avenue lot, and upon the Tenth avenue lot for materials furnished to the Fifty-first street lot. In this way he attempted to place a lien on the Fifty-first street property to the extent of $1,693, for claims which appertained only to the Tenth, avenue lot, and for which the Fifty-first street lot could not be held. Such a lien is not authorized by the statute, and since all the facts were perfectly well known to plaintiff and set out at length in his complaint his attempt to obtain an unauthorized lien must be held to have been willful and intentional. This is not a case such as has sometimes arisen of work done on contiguous lots under a single contract. These were separate contracts and the lots were far apart. If the lien was invalid no judgment can be had against the surety which gave the bond to release them. Nor can a personal judgment be granted in this action against the owner. Weyer v. Beach, 79 N. Y. 409; McDonald v. Mayor, 58 App. Div. 73. Judgment for defendants, with costs, in favor of the owner and the Surety Company.

Judgment for defendants, with costs to owner and Surety Company.  