
    Antonio Paturzo, Respondent, v. Rebecca Shuldiner, Appellant.
    Second Department,
    April 24, 1908.
    Mechanic’s lien — pleading — failure to allege performance — evidence — effect of failure of owner to insure.
    A complaint in an action to foreclose a mechanic’s lien which alleges th.at the plaintiff has completed the contract except certain work of the value of $250, but which fails to allege an excuse for such non-performance, does not state a cause of action.
    A complaint seeking to foreclose a mechanic’s lien for work done under a contract providing for payment by installments as the work progressed fails to. state a cause of action in the absence of an allegation that the work and material necessary to the first payment had been done and furnished.
    Evidence in an action to foreclose a mechanic’s lien examined, and held, that the plaintiff failed to show performance or excuse his failure to perform.
    Although the specifications of a building contract do not provide for the bolting of the structure to its foundation, the contractor is not justified in abandoning the contract because the owner refuses to pay an extra amount for the bolts, for they are an implied detail of the work.
    Although a building contract provides that the owner shall keep the building insured for his own and the contractor’s benefit against five, lightning, earthquakes, cyclones or other casualties, the contractor is not justified in abandoning the work because the owner insured against fire only, for insurance was not a condition precedent.
    Appeal by the defendant, Rebecca Shuldiner, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 1st day of April, 1907, upon the decision of the court rendered after a trial at the Kings County Special Term.
    The action was to foreclose two mechanic’s liens, each one on a separate house on the same plot of land.
    
      Frederick Hulse, for the appellant.
    
      Robert H. Roy, for the respondent.
   Gaynor, J.:

The judgment should have been for the defendant. The first cause of action is based on a contract for the building of a house by the plaintiff at Coney Island in the borough of Brooklyn for the defendant for $3,250, the first payment to be $1,000 when the building was erected and the brown mortar on, the second $500 when the trim was completed, and the final payment $1,750 upon the completion of the work; payments to be made on the architect’s certificate. The complaint alleges that the plaintiff completed the contract except certain work of the value of $250, and that there is due him under the contract $2,000 — the $250 being deducted. But it then alleges that “ the plaintiff duly fulfilled .and performed all the conditions ” of the contract, but was prevented from completing the same “within the time therein specified” on account of certain extra work done by him at the defendant’s request, and also because the defendant did not make the payments as agreed. It is impossible to reconcile these allegations. They show that not only was the contract not completed in the contract time, but that it was also not completed to the extent of work of the value of $250. Ho excuse for this latter non-performance is alleged; and hence no cause of action is alleged.

The second cause of action is based on an oral contract for the building of another house on the same plot the same as the first house and for the same price and according to the terms of the written contract for the first house. - The complaint alleges that the plaintiff performed work of the value of $1,200 thereon, and that nothing has been paid thereon. There is no other allegation concerning that contract, or its performance. There being no allegation that the work and material necessary to the first payment had been done and furnished, no cause of action was alleged.

The evidence is as deficient as the complaint. The first payment on the first house was made on the architect’s certificate. He thereafter gave a certificate for the payment of $1,000 more. It could only be for $500 on the first house, i. e., for the second payment. It is said, and the court found, that $500 of it was for work and material on the second house, for which nothing had yet been paid. The certificate did not say that $500 of it was on the second house, and that could not be so, for the first payment was by the contract to be $1,000, as we have seen. But without puzzling- over this, it sufficeth that the plaintiff’s own evidence shows that the trim was not completed on the first house, and hence that the second payment thereon and the certificate therefor was not due; and that there was no evidence that the work and material necessary for the first payment of $1,000 on the second house was done and furnished. The evidence is that the plaintiff quit the second contract because the inspector from the building department told him he must put in bolts deep enough in the foundation to hold the frame superstructure to the foundation — just how does not appear ■— and the defendant refused on the plaintiff’s request to agree to pay extra for such bolting. Specifications do not as a rule provide for the nails and bolts necessary to make a structure safe — that is an implied detail of the work for the contractor to attend to — and the specifications in this case do not. In addition to that a building inspector has no power to impose any conditions different to the-.specifications on file with and approved by the building department, as has to be the case in respect of all buildings being erected. If this inspector imposed anything illegal, the plaintiff was not bound to comply with it. The framework of this building had been twice blown off the foundation, and the building inspector may have been quite right in insisting that it be properly fastened to the foundation so that it should not be blown off again. The' defendant agreed in the written contract that he would keep the building insured for his and the contractor’s benefit as it progressed against damage by “ five, lightning, earthquake, cyclone or other casualty ”, but he only insured it against fire. It was a high wind which blew the framework off the second time. The plaintiff did not quit for this; he went back to work and quit for the reason already stated. It would seem that the failure to insure would not be a ground for quitting; it was not a condition precedent.

The learned trial court found that work and material of the value of $725 was short iu the performance of the contract for the first house, hut gave judgment of foreclosure for the balance, less the said first payment of $1,000. It found that the foundation of the second house was worth $250 and gave judgment of foreclosure for that sum. It denied foreclosure for the framework as that was not there, having been blown off. But it gave a personal judgment of $1,000 against the defendant for the framework, “the loss being directly traceable to defendant’s breach of the contract to insure ”, as is said in the opinion below. But there was no action for a breach of the contract in that respect before the court.

The learned trial court allowed three amendments of the complaint in respect of the canse of action for the second house during the trial, evidence being objected to on the ground that the complaint did not state facts sufficient. It is not necessary to determine whether these amendments eked out a sufficient cause of action, for even so the evidence was insufficient.

The judgment should be reversed.

Woodward, Jenks, Hooker and Bich, <JJ., concurred.

Judgment reversed on questions of fact and of law, and new trial granted, costs to abide the final award of costs.  