
    Charles H. Kelly, App’lt, v. Joseph B. Bloomingdale et al., App’lts, and William F. Lawrence et al., Resp’ts.
    
    
      (Court of Appeals,
    
    
      Filed October 3, 1893.)
    
    1. Mechanics’ lien.
    Where by the terms of a building contract a certain percentage is to be-retained by the owner until its final completion, and the contract is never-completed by the contractors but the owners are compelled to complete the houses themselves at a cost greater than the price stipulated in the contract, the percentage never becomes due to the contractor and his sub-contractors have no other or different claim to it than he would have, and there is nothing in the statute or any rule of equity that will compel the owners to satisfy the lien of the sub-contractors out of the percentage; retained.
    
      3, Same—Payment after notice.
    The lien attaches and the rights of the claimant as against the owner and the property become fixed upon filing the notice, and a payment by the owner to the contractor with knowledge of the claim and after the notice of lien therefor has been filed, is inoperative under the statute against the lien of the material man.
    Appeal from judgment of the supreme court, general term, second department, affirming judgment entered upon report of ¡referee cancelling the liens of plaintiff and directing foreclosure of the liens of defendants Lawrence.
    
      Matthew L. Harney, for pl’ff-app’lt; Otto Horwitz, for app’lts Bloomingdale; James M. Hunt, for resp’ts.
    
      
       Affirming 46 St. Rep., 370.
    
   O’Brien, J.

The plaintiff is the assignee of the claim and lien of a mechanic who performed work and funished material under an agreement with a general contractor, in plumbing and furnishing the gas fixtures in two houses which the contractor agreed to build and complete for the owners, the two Blooming-dales, respectively. The owners and other mechanics or material men who had also filed liens were made defendants and answered, setting up defenses against the plaintiff’s lien which he sought to foreclose in the action. The referee dismissed the complaint, and reported with respect to the other liens, sustaining them against the plaintiff and the owners. The judgment entered upon the report having been affirmed at the general term, the plaintiff and the owners, the Bloomingdales, appeal to this court. The latter owned land as tenants in common, and on the 18th of March, 1890, the contractor agreed with each of them separately to build two houses on the land. The contract price with J oseph B. Bloomingdale was $11,460, and with his brother Lyman Gr. $13,700. The houses were to be built and completed on or before October 1 thereafter, but the contractor failed to perform and abandoned the work about August 6, 1890, and the owners were compelled to complete them themselves at a cost greater than the price stipulated in the contract. It was stipulated between the owners and contractors that payments should become due and payable “ from thirty days in such sum as shall be certified by the architect, but twenty per cent shall be retained until the final completion of the contractalso, that in all matters relating to the contract the architect should be deemed to be the agent of the owners. The plaintiff’s assignor performed work and furnished materials on one of the houses amounting to $710.79, and on the other to the amount of $907.04. He filed a notice of lien for these amounts on the 8th of August, 1890. The plaintiff’s appeal raises the question, whether at that date there was anything due to the contractor under the contract, not absorbed by prior liens, to which his lien could attach. The main contention on the part of the plaintiff, and the only one necessary to notice, is that, when his lien was filed, twenty per cent of the cost or value of the work done and materials furnished up to that time remained unpaid by the owners, and that as they have had the benefit of this work and material, a lien was impressed upon that sum, amounting to about $14,000, in favor of the plaintiff. This proposition cannot be sustained. The twenty per cent, was, by the contract which the owners made, to be retained by them till the final completion of the contract. It never was completed, and, hence, this part of the price never became due to the contractor; and his sub-contractors have no other or different claim to it than he would have. It was retained in order t.o secure the owners from loss by the contractor’s default, and the right to demand it by any one depended upon the substantial performance of the contract, a condition which was never fulfilled. Even with this sum retained, the owners still were at a loss on account of the default, as they paid in all a sum greater than the price agreed upon. Under such circumstances, there is nothing in the statute, or any rule of equity, that will compel the owners-to pay the plaintiff’s claim.

This is the only question presented by the plaintiff’s appeal that requires discussion, and as, at the time the notice was filed, there was nothing due to the contractor upon the contract, and nothing became due or payable to him subsequently, no lien was acquired. Larkin v. McMullin, 120 N. Y., 206; 30 St. Rep., 902; Van Clief v. Van Vechten, 130 N. Y., 571; 42 St. Rep., 736; Lauer v. Dunn, 115 N. Y., 405; 26 St. Rep., 412.

The other question in the case arises between the defendants, and is presented by the owners’ appeal from that part of the decision which upholds the lien and claim of the defendants Lawrence, who furnished the lumber used by the contractor before he abandoned the work. The facts out of which this part of the controversy arises are these : On July 16, 1890, there was due to-Lawrence about $1,900 for lumber ordered by the contractor, and notice of lien therefor was filed July 19. About $500 more lumber was subsequently furnished, for which liens were filed July 27th. On the 21st of July the owners paid to the contractor $2,600, upon the certificates of the architect, in pursuance of the contract, showing that such sums were due, bearing date July 18th, and stating upon their face that a notice of the Lawrence claim for lumber had been filed. The architect, who, by the terms of the contract, was the agent of the owners, bad been shown copies of the notices of lien before he made the certificates, though they were not actually filed until the next day. The owners also had actual personal knowledge of the claim before they made the payment. Under a provision of the contract the owners were not bound to make any payment to the contractor until he satisfied them, if required, that material men and sub-contractors had been paid. We will not stop to inquire what equities arose upon these facts between the material men and the owners independent of any statute.

The question is, whether the payment by the owner to the contractor with full knowledge of the claim, and after notice of lien therefor had been filed, is operative under the statute against the lien of the material man. The owners claim that it is, and this contention rests solely upon the words of the last clause of § four of the act. After providing for service of a copy of the notice upon the owner within ten days after filing, the section concludes in these words: “And after such service, such owner or the person in interest shall not be protected in any payment made to subcontractor or other claimant.” The notice was served upon the owners within ten days after filing, but not until after the payment to the contractor.

Notwithstanding this language, it is apparent from the whole statute that the lien attaches, and the rights of the claimant as against the owner and the property become fixed upon filing the notice, and so it has been held by this court. McCorkle v. Herrman, 117 N. Y., 303; 27 St. Rep., 333; Kenney v. Apgar, 93 N. Y., 541; Hall v. Sheehan, 69 id., 618.

We are required to give to this statute a liberal construction, but to hold that, after the notice is actually filed, the owner is still at liberty to make payments the same as before in disregard of it, because he had not been actually served with the copy provided, for, would be to defeat in many cases its beneficial purposes. Whatever may have been intended by the language quoted, it is certain that it does not in words or by any fair implication protect the owner who pays before the notice is served and after it is filed. The meaning of the statute is to be ascertained, not from a single expression, but from all of its provisions as well as the general scope and purpose in view.

Moreover, it should be noted that although the copy of the notice had not been served when the payment was made, yet the owners had in another way not only constructive notice of the lien, but actual notice of the claim, and the fact that the notice was to be immediately filed. There was, we think, no error in the disposition made of the ease below, and the judgment should be affirmed, with costs in this court to the owners against the plaintiff, and to the defendants Lawrence against the owners.

All concur.  