
    Anton Weisemair, App’lt, v. The City of Buffalo, Resp’t.
    
      (Supreme Court, General Term, Fifth Department
    
    
      Filed June 19, 1890.)
    
    1. Mechanic’s lien — Does not attach to amount retained as security WHEN CONTRACT IS ABANDONED.
    Where a contract with a city provides that a certain percentage may be retained until three months alter the completion of the work, such provision is for the security of the city and not for the benefit of the contractor or his employees, and a lien by the latter cannot attach to the sum so retained where the contractor abandons the work.
    3. Same.
    The contractor having abandoned the work, leaving in defendant’s hands less than twenty per cent, of the work done, it agreed with the contractor’s sureties that they should complete the work for the balance of the contract price, which was done, and defendant paid them such balance. Held, that such payment was not wrongful as to the contractor’s workmen and did not render the city liable to them, and the question whether the contractor had agreed with the sureties to complete the work for the balance of the contract price over the amount retained by the city was immaterial, the city having no notice of such agreement and having contracted with the sureties in good faith and paid them no more than their work was worth.
    Appeal from a judgment of the county court of Brie county entered on the verdict of a jury directed by the court.
    
      Giles F. Stillwell, for app’lt; Frank 0. Laughlin, for resp’t.
   Dwight, P. J.

The plaintiff and his assignor of a portion of the claim sued upon, were workmen in the employ of one Winter on a contract of the latter to do the work of a local improvement in the city_ of Buffalo. By the terms of the contract the defendant was entitled to retain twenty per centum of the contract price until three months after the completion of the work. On the 7th of June, 1888, the contractor having done work to the amount of $1,275, and having been paid thereon the sum of $1,120, abandoned the work, leaving in the hands of the defendant the sum of $155, or less than twenty per centum of the value of the work done. On the 25th day of June, the plaintiff and his assignor filed mechanic’s liens, under the provisions of chap. 355 of the Laws of 1878, for the amount of their claims for work done before June 7th. Thereafter the defendant notified the sureties of the contractor to complete the work, and they did so under an agreement with the defendant that they should receive for the work required to be done by them the balance of the contract price not-already paid to Winter ; and upon their completion of the work, August 1, 1887, that balance was paid to them. The value of the work done by the sureties was more than the compensation so-paid.

The contention on the part of the plaintiff is that the liens of himself and his assignor, though filed after the abandonment of the work by their employer, Winter, and after payment to him of mqre than the full amount which he was entitled to receive up to that time, attached to the balance of $155, retained under the contract; that the payment of the entire balance of the fund on the 1st of August to the parties completing the work, while it defeated the liens, excused the lienors from bringing an action to-'' foreclose within the ninety days limited by the statute, or at any time thereafter, and that the defendant is liable for its wrongful act in paying out the balance of the fund; and we understand counsel to contend that the act was wrongful for two reasons: 1st, because it defeated the provisions of the statute which give the lienors ninety days after filing their liens in which to commence-an action to foreclose them; and, 2d, because it was in direct violation of the defendant’s contract to retain twenty per centum of the, money earned for three months after the completion of the-work.

¡Neither of these positions is at all tenable. The provision of the contract referred to was not for the benefit of the contractor, still less for that of his employees, but for the benefit of the city, as security on the part of the contractor that the work done should remain, or be kept, in repair for the period named after its completion. It was a condition which the city might waive at its-pleasure and under which no other party could claim any rights.

The other ground of contention is equally unavailing. Thelienors had no lien on any portion of the balance of the contract: ¡Drice, because no part of it ever became due to the contractor. By abandoning the work before its completion the contractor forfeited all right to the balance retained by the city. That balance was-not to become due to the contractor until three months after the completion of the work under the contract with him. The contract with his sureties was a new contract and could not-enure to-his benefit, nor to that of his lienors. Haswell v. Goodchild, 12 Wend., 373; Hagan v. Am. Baptist Society, 6 N. Y. State Rep., 212, 217, and the cases cited.

The question of fact whether Winter had agreed with his sureties to complete the work for $200, the balance of the contract price over and above the amount retained by the city on the work done by the former, was immaterial. There was no pretence that the city or its officers had any notice of such an agreement, if it was made, and the evidence is undisputed that they contracted with the sureties in good faith, and that the price paid to them was not more than the actual value of the work done by them.

The judgment of the county court was right and must be affirmed.

Macomber and Corlett, JJ., concur.

Judgment of the county court affirmed, with costs.  