
    Waldo Shields, Doing Business as Church Construction Co., Respondent, v. Mt. Carmel Baptist Church of Arverne, N. Y., Appellant.
   In an action to foreclose a mechanic’s lien, amended judgment entered after trial reversed on the law and the facts, with costs, and the complaint dismissed, with costs. The findings and conclusions are reversed. Defendant’s proposed findings 1 to 21, inclusive, and 24, are found. Proposed finding 22 is modified by striking therefrom the figure “ $4,730.00 ” and substituting in place thereof the figure “$6,700.00”; and as thus modified the said proposed finding is made. Proposed finding 23 is modified by striking therefrom the word “three” and the phrase, thereby making overpayment to the plaintiff of the sum of $1,970.00.” As thus modified the said proposed finding is made. Proposed findings 25 to 28, inclusive, and all proposed conclusions of law, are disapproved and not made or allowed. Additional informal findings are made as set forth below. Under the contract and plans, the interior basement walls, their footings, and the excavations therefor, were part of the foundation. In the absence of such items, and the erecting of the perimeter walls to heights lower than those provided by the plans, it may not be held that the foundation was completed or substantially completed, as required by the contract, and that a progress payment of $10,000 was due. There was no agreement for extra work, and there was no excavation at the perimeter for a depth of three feet greater than shown on the plans. Adel, Schmidt and Murphy, JJ., concur; Nolan, P. J., dissents and votes to affirm. Beldoek, J., dissents and votes to affirm, with the following memorandum: The evidence presented a pure question of fact. Defendant’s architect testified that the foundation walls shown on the plans were substantially completed; that the interior walls were not foundation walls; and that the excavation had to go three feet deeper than planned. That testimony was believed by the Official Referee. Under the circumstances, the determination of the Official Referee is supported by substantial evidence.  