
    (2 Misc. Rep. 267.)
    HUTTON BROS. v. GORDON et al.
    (Rockland County Court.
    February, 1893.)
    1. Building Contract—Abandonment by Contractors—When Justified.
    A building contract provided that the contractors should furnish all materials, and complete the building by a specified day, on failure of which they should forfeit to the owner $10 for each day’s delay, and that during the progress of construction the owner might require alterations, for which a reasonable valuation should be added to or deducted from the contract price. Held, that the contractors were not justified in abandoning the contract after the date fixed for completing the building, on account of disputes respecting the kind of work being done, and materials used, and the alterations required, and because the owner refused to release them from liability on the forfeiture Clause, though the latter was in error as to her claims.
    2. Same—Completion by Owner—Lien of Subcontractors.
    Such contract provided that the contractors should be paid in three equal installments, as the work progressed, the last payment becoming due on completion of the building; that in case they at any time refused or neglected to supply sufficient workmen or materials the owner might provide them, after three days’ written notice to them to finish the work; and that the expense of completing the building by the owner should be deducted from the contract price. Held, that where the owner, after payment to the contractors of the second installment, and abandonment of the contract by them, completed the building at an expense in excess of the amount of the unpaid installment, subcontractors were not entitled to foreclose a mechanic’s lien, filed two months after such abandonment, for materials furnished and labor done, though the contractors did work and furnished materials after payment to them of such second installment.
    3. Same—Materials Furnished Contractors after Abandonment.
    Nor are subcontractors entitled to recover against the owner for materials furnished such contractors, on their orders and credit, after they abandoned the contract, and which were used by the owner in completing the building, since the title to such materials was in the contractors, and no personal liability on the part of the owner to the subcontractors was thereby created.
    4. Same—Notice of Lien.
    Where the notice of the subcontractors’ lien does not cover labor to be performed or material to be furnished, they are not entitled to a lien for labor and materials furnished after filing the lien.
    5. Same—Agreement to Pay Subcontractors—Statute of Frauds.
    An oral promise by the owner to pay subcontractors made while the latter are working for the contractors, on condition that they will release their lien, which they do, imposes no legal liability on the part of the owner to such subcontractors, since such agreement is a promise to answer for the debt of another, and within the statute of frauds.
    
      6. Same—Labor and Materials Furnished Owner by Subcontractors.
    Where such subcontractors furnished materials to, or performed labor for, the owner, after she began the completion of the building, they are entitled to a personal judgment against her therefor.
    7. Sam:e—Damages for Failure to Complete Building—Counterclaim.
    Under the forfeiture clause of such contract the owner is entitled to recover against the contractors, on a counterclaim, $10 per day for such time only as elapsed between the day provided for the completion of the building and the date on which it could have been completed, with diligence, after the owner undertook to finish it.
    Action by Hutton Bros., a corporation, against Lizzie S. Gordon, Butler & Thurston, and others, to foreclose a mechanic’s lien.
    A. & A. X. Fallon, for plaintiff.
    John McCormick, for defendant and owner, Lizzie S. Gordon.
    Arthur S. Tompkins, for defendants Hartwicke, Meyers, and Trasback.
    Wm. McCauley, Jr., for defendant Moore.
    George A. Wyre, for defendants Eckerson & Elvery.
   WEIANT, J.

This action is brought to foreclose a mechanic’s lien on land of the defendant Lizzie S. Gordon. The defendant Gordon, being the owner of certain lots at Congers, in this county, on December 11, 1890, entered into a written contract with Butler & Thurston, a firm of builders, whereby they agreed to construct a dwelling for her upon said lots on or before April 15, 1891, for the consideration of $1,700. This agreement was, on or about August 13, 1891, superseded by a new contract, in writing, entered into between the same parties, whereby said Butler & Thurston agreed to construct said dwelling, and furnish all materials, for the like consideration, to be paid to them in three equal payments,—one when the house was “raised, framed, and inclosed;” the second, “when the plastering is all complete;” and the third, “when the house is finished and completed according to the plans and specifications.” The house was to be erected and finished on or before November 15, 1891. The work was to be done to the satisfaction, and under the direction, of one David L. Allen. The contract provided that at any time during the progress of constructing the building the owner might request any alteration of, addition to, or omission from, the contract, and that the same should in no way affect the contract, but that a reasonable valuation should be added to or deducted from the contract price, accordingly. It was also provided that should the contractors, at any time during the progress of the work, refuse or neglect to supply a sufficiency of materials or workmen, the owner should have power to provide materials and workmen, after three days’ notice, in writing, being given the contractors to finish the said work, and the expense should be deducted from the amount of the contract. The contract also contained a covenant on the part of the contractors to pay to the owner $10 for every day the said building should be incomplete after November 15, lc91. The contractors proceeded with the construction of the building under this agreement until about the 1st of December, 1891. The work had been sufficiently advanced to entitle the builders to the first two installments of payment, and the owner had made the same, in compliance with the contract, amounting to $1,133.33, the latter one of which was made September 26,1891. The builders proceeded with their work some time thereafter,- and now claim that at the time they ceased they had done work and supplied materials to the value of $1,200, $1,300, or $1,400. Differences arose between the builders and the owner as to whether or not the work and materials were in compliance with the contract, and as to changes and alterations in portions of the structure. The work was delayed, and finally the builders refused to proceed with the work and complete the building, and finally ceased, the latter part of November, or 1st of December, 1891. Negotiations and conferences followed between the parties for the purpose of adjusting these differences, and bringing about the completion of the building. On or about December 29, 1891, it appears that at a conference in New York city an. amicable arrangement was reached, under which the builders were to proceed and finish the building under the contract, with certain alterations. This arrangement was reduced to writing, but the contractors refused to execute the same, or to proceed with their work, unless the owner, Mrs. Gordon, would release them from any liability for the $10 a day that they were obligated to pay, under the contract, for failure to complete the building within the time required by the contract. Thereupon, about January 5, 1892, the owner caused a written notice to be served upon the contractors, in which she stated that unless they proceeded within three days to the completion of the building, as provided by the plans and specifications, she would proceed to complete the building, and hold them responsible for all expense thereof. The contractors refused to proceed, and the owner then proceeded to complete the building, and for the same incurred an expenditure and cost of about $685. The plaintiff, a corporation, under purchases made by Butler & Thurston, the contractors, between August 22 and December 15, 1891, furnished materials, and delivered the same, to be used in the construction of this building in question, to the amount and value of $329.20, of which $100 was paid by such contractors. Upon January 16, 1892, it filed a notice of lien for $229.20 for materials delivered to said Butler & Thurston to be used in the construction of said building. There is not sufficient evidence to connect the owner, Mrs. Gordon, with the furnishing or use of these materials, so as to establish a personal liability against her. The plaintiff must therefore rest, as to the liability of the lands in question, upon the relations established between her and the contractors, Butler & Thurston. It is therefore necessary that we should first give consideration to the legal status of the contractors and owner.

It is conceded that Butler & Thurston did not complete their contract, and abandoned the construction of the building. This I. do not think they were justified in doing, under the facts and circumstances, even if their contention be true, that Mrs. Gordon. was wrong in her claims as to the alterations, deviations from, or failures to comply with, the plans and specifications; for, as appears, the contract provided for all such contingencies, and did not authorize an abandonment of the work for any differences such as arose between these parties. If Mrs. Gordon were in error in her claims, the contractors were not relieved from carrying out the agreement on their part. Upon their refusal to proceed and complete the building, Mrs. Gordon, in accordance with the right given her under the contract, proceeded to complete the building; and, pursuant to its provisions, she is entitled to deduct the expense thereof from the amount of the contract price, or any moneys Butler & Thurston may have earned. She thereafter, in January, 1892, entered into a written contract with one Theodore A. Dubois to complete the building, (meaning the carpenter work,) in accordance with the same plans and specifications, for the sum of $195, but not including a claim of Mead Sc Taft, for materials, of $83.39. The evidence shows that she actually paid out, or legally obligated herself to pay, in the aggregate, to thus complete the building, the sum of about $685, excluding certain several .omissions that were supplied to conform the building to the contract, which together exceeded the entire amount of the last payment and extras, if any, under the contract, by at least the sum of $100, which would have been due and payable to Butler & Thurston if they had performed their contract, and even with such extra compensation, if any, as had been earned by them in addition. Under such circumstances, Mrs. Gordon’s lands cannot be subjected to the lien of the plaintiff, although Butler & Thurston had done work and furnished materials after the second payment under their contract. Cheney v. Hospital Ass’n, 65 N. Y. 282; Larkin v. McMullin, 120 N. Y. 206, 24 N. E. Rep. 447, and cases there cited; Foshay v. Robinson, (Sup.) 16 N. Y. Supp. 817; Van Clief v. Van Vechten, 130 N. Y. 572, 29 N. E. Rep. 1017. In the latter case it is said that “they [meaning subcontractors] are under the same obligations to prove performance, and to the same extent, that he [the contractor] would be. Their rights as lienors are measured by his rights under the contract.”

The plaintiff delivered some materials after Butler & Thurston ceased work, which were subsequently used in the completion of the building by Mrs. Gordon, or her agents or employes. These consisted of window sash, and some lumber, of the value of $18.40. But the same were sold and delivered to Butler & Thurston, upon their order and credit, and therefore, upon such delivery of the same, became the property of that firm, and the same rule that precludes the plaintiff from recovering for the other portion of its claim seems also to prevent a recovery for this latter sum. Nor, by using these materials, did any personal liability arise, on Mrs. Gordon’s part, to the plaintiff. The title to the same was in Butler & Thurston. Such knowledge and assent as to the using of such materials, on her part, may be sufficient to authorize a lien, but not a contract creating a personal liability. Spruck v. McRoberts, (Sup.) 19 N. Y. Supp. 129. Indeed, the plaintiff, in its complaint, does not make any allegations looking to charge 'Mrs. Gordon personally, and such relief is not asked. The plaintiff is, however, entitled to a personal judgment against the defendant® Butler & Thurston for the balance of their debt, which appears to be $229.25.

As to the claim of the defendant Hartwieke, who did the mason work, the same rules, applied, as above, to the claim of the plaintiff, are applicable to him, as a subcontractor under Butler & Thurston. There appearing to be nothing due Butler & Thurston for the labor performed and the materials furnished by them in the construction of the building, after deducting the cost incurred by Mrs. Gordon in completing the building in accordance with the contract, he cannot recover on his lien. Hartwicke’s lien was filed November 27, 1891. He has no lien for labor done or materials furnished after that date, for his notice of lien does not-cover labor to be performed, or materials to be supplied, thereafter. His answer admits that. The notice of lien must specify the materials to be furnished or labor to be performed, and whether all the work or materials for which the claim is made has been actually performed or furnished, and, if not, how much of it, etc. Chapter 342, Laws 1885, § 4. Failure to comply with this requirement is fatal to the lien. Close v. Clark, (Com. Pl. N. Y.) 9 N. Y. Supp. 538; Foster v. Schneider, (Sup.) 2 N. Y. Supp. 875; Bulkley v. Kimball, (City Ct. Brook.) 19 N. Y. Supp. 672. This subcontractor testifies that Mrs. Gordon promised to pay him his claim, while he was working for Butler & Thurston, if he would release his lien, which at that time he had filed, and which he did. Mrs. Gordon denies this. But if she did so agree it imposed no legal obligation upon her. Every special promise to answer for the debt of another is void, unless in writing, and subscribed by the promisor. 3 Rev. St. (5th Ed.) p. 221, § 2. Hartwieke, however, did some work on these premises of the owner after she had taken upon herself to complete the construction of the building. It seems to me that the evidence leads to the conclusion that such work was done for her, and with her assent, or that of her agent, and as her employe. He thus constructed the cesspool for $15; he performed extra work in plastering, $24; plastered a partition a second time, owing to a change of the same, the value of which was $10.80; and did work upon an arch, of the value of $3; making an aggregate of $52.80, and for which sum Hartwieke is entitled to personal judgment against her. Wollreich v. Fettretch, (Sup.) 4 N. Y. Supp. 326; Thomas v. Sahagan, (Sup.) 10 N. Y. Supp. 874. He is also entitled to judgment.against the defendants Butler & Thurston for the sum of $181.20, which I find to be their indebtedness to him for his labor done and materials furnished in constructing this building, not including the $52.80 above charged against Mrs. Gordon.

The claims and liens of the defendants Frederick Meyers, Bernice Trasback, and Newton Smith, of course, must fall, for reasons already advanced. They were employes of, or furnishers of materials to, the defendant Hartwieke, and there being nothing due from the defendant Gordon under Ms lien, nor at the time the liens of these subcontractors were acquired, their liens must fall with Ms. There being no proof that they did work under the employment of Mrs. Gordon, they cannot, by the judgment in this action, be awarded payment from the sum due Hartwicke from Mrs. Gordon personally. The two proved their claims to the amounts of $27.75 and $22.50, respectively. The two former may have judgment against the defendant Hartwicke for the said amounts owing them, respectively. The defendant Smith gave no proof of his claim, nor interposed any answer, and consequently he is not entitled to any affirmative relief. Morgan v. Stevens, 6 Abb. N. C. 356; Code Civil Proc. § 521; Laws 1885, c. 342, § 17.

The lien of the defendant Moore, for tinning and hardware, is ineffective for the reasons assigned as to the liens of the claimants, Hutton Bros, and Hartwicke. His lien was filed December 2, 1891, and Ms notice does not specify that he claims a lien for future labor to be performed or materials to be furnished, and, as we have seen from the authorities cited, his notice of lien is insufficient to cover such. TMs makes it unnecessary to determine the question as to whether Ms notice of lien was insufficient because of the error in the same, as to the numbers of the lots. He did, however, at the instance and employment of the owner, Mrs. Gordon, after the filing of his lien, and independently of a claim thereunder, do some tinning upon the piazza, and placing of gutters and leaders thereon, of the value of $14.62, for which sum he is entitled to a personal judgment against the defendant Gordon, less $5 paid, and against the defendants Butler & Thurston for the sum of $113.38; that appearing to be the amount that they owe him, after crediting the payment of $35.

The remaining claim for consideration is that of the defendants Vincent B. Eckerson and Asa W. Elvery, who did business as painters under the firm name of Eckerson & Elvery. They were subcontractors, under Butler & Thurston, to do the painting of the building, and furnish the materials therefor, for $100. They proceeded with their work under Butler & Thurston, but claim that $75 worth of the work was done, and materials furnished, after Butler & Thurs-ton quit. They testify that they did not complete their work until about the middle of April, 1892. They filed their lien June 9, 1892, for $100. The evidence discloses that Mrs. Gordon continued these defendants in their work of painting. She seems to have considered them in her employ, for she had a conversation with Mr. Eckerson, in wMch she testifies that they signified their willingness to accept $50 as satisfactory, and she. thereupon informed them of the source from which she was to obtain her money, and stated that she could not pay them until the house was finished, and that they said that if they were paid for their labor they were satisfied, and named $54 or $56 as the sum. TMs is undenied. My conclusion as to the rights of these defendants is that their lien, having been filed after the completion of their labor and furnishing of their materials, is valid and enforceable to the extent of the value of the labor performed and materials supplied after Mrs. Gordon assumed the performance of the contract, for they were then her employes. Richardson & Boynton Co. v. Reid, (Sup.) 3 N. Y. Supp. 224; Riggs v. Chapin, (City Ct. N. Y.) 7 N. Y. Supp. 765-769; Wollreich v. Fettretch, (Sup.) 4 N. Y. Supp. 326. I find the value of the same to be $56, and sustain their lien for that amount; and for the balance of the contract price with Butler & Thurston, being $44, they are entitled to judgment against those defendants personally.

There is testimony to the effect that, in the course of the progress of the work upon this building, Mrs. Gordon, or some one representing her, visited the building, inspected the work, and in. such method or otherwise acquired knowledge or information which is sufficient to call for finding that she became personally liable to the subcontractors for work done or materials furnished, other than such as she has been charged with above. I do not understand such to be the law. The proof must go far enough to authorize a finding that it was her purpose and intention to become the employer or purchaser. But in the absence of an agreement by the owner, making himself personally liable for the claim of the subcontractor, the latter has a claim against the property no further than the amount unpaid on the contract at the time of filing his lien. Riggs v. Chapin, (City Ct. N. Y.) 7 N. Y. Supp. 769. In that case, ’Chief Judge McAdam, writing the opinion, says:

“But where an owner employs a contractor, and pays Mm all he contracted to pay,—not in advance, but as the work progresses; not collusively, but in good faith,—he cannot be again compelled to pay,'simply because the contractor subsequently fails to pay those he employed. The contractor has the right to employ assistants ‘without the consent of the owner.’ The nature of the work would imply that he must. These employes are selected by, and are under the exclusive control of, the contractor, who makes his own contracts with them, and superintends their performance. MechaMcs are not compelled to accept employment under Mm, neither are material men bound to credit him; and if they do they must look to Ms personal credit, or see to it that their notices of lien are filed m time to stop the payments com.rng from the owner to the contractor according to the terms of the contract; or their effort to acquire a lien on the property may prove abortive.”

The defendant Gordon, in her answer, sets up a counterclaim against Butler & Thurston, the contractors, for the $10 per day which they, by their contract, agreed to pay her for every day the said building is uncompleted after 27ovember 15, 1891, and which she claims aggregated the sum of $1,620, when the building was finally completed, about May 1, 1892. This seems to be a valid counterclaim. ■ O’Donnell v. Rosenberg, 14 Abb. Pr. (N. S.) 59; Morgan v. Stevens, 6 Abb. N. C. 356-363; Pettis v. Bloomer, 21 How. Pr. 317; Ward v. Building Co., 125 N. Y. 230, 26 N. E. Rep. 256. That, however, as regards the rights of the lienors in this case, is immaterial, for the reason that I have determined there was nothing due Butler & Thurston over and above the expenses which Mrs. Gordon has paid or incurred in completing the building. It is simply, therefore, a question as to whether Mrs. Gordon is entitled to a personal judgment against Butler & Thurston for such damages. I ám not prepared at this time to dispose finally of this question.1 I have no proof before me that a copy of this answer was served on those defendants, as required by section 521, Code Civil Proc. It seems that is essential in order to award such relief as is asked. Assuming that she is entitled to such a' personal judgment, she cannot recover such an amount. She can only recover the $10 per day for such time as elapsed between November 15, 1891, and the time Mrs. Gordon assumed the completion of the contract, and such further period of time thereafter within which the building could have been completed, with diligence, and promptness. Morgan v. Stevens, 6 Abb. N. C. 356-363. The question of waiver may also bear materially upon this matter. Bigler v. Transportation Co., (Sup.) 5 N. Y. Supp. 347. This question may be disposed of upon settlement and entry of the judgment.

Judgment is accordingly directed as follows: That the complaint be dismissed on the merits as to the defendant Gordon, and the plaintiff’s lien canceled, with costs against the plaintiff, and that the plaintiff have judgment against the defendants Butler & Thurs-ton for $229.25, with interest and costs, as upon default; that the defendant Hartwicke’s lien be declared invalid, and canceled of record, and that he have personal judgment against the defendant Gordon for $52.80, with interest, but without costs to either party,. as against the other; that said Hartwicke have judgment against the defendants Butler & Thurston for $181.20, with interest and costs, as on default; that the liens of the defendants Meyers and Trasbeck are invalid and be canceled, and that they have judgment against the defendant Hartwicke for the respective amounts of $27.75 and $22.50, with interest and costs, as on default, and that the lien of the defendant Smith be canceled, and the case as to him be dismissed, without costs; that the lien of the defendant Moore-is invalid, and the same be canceled, and that he have judgment against the defendant Gordon, individually, for $14.62 and interest, but without costs, and that he have judgment against the defendants Butler & Thurston for $113.38, with interest and costs, as on default; that the defendants Eckerson & Elvery have judgment for the enforcement of their lien to the amount of $56 and interest from the filing of the same, with a trial fee of $30 costs, and upon payment thereof that their lien be canceled, and that they have judgment against the defendants Butler & Thurston for the sum of $44, with interest and costs, as upon default. The allowances of costs as above have been made in an equitable sense, and seem to accord with authority. Morgan v. Stevens, 6 Abb. N. C. 356. I will hear counsel further on settlement of the judgment.  