
    Caspar Stroebel, Appellant, v. John Ochse, Impleaded, Respondent.
    (New York Common Pleas
    General Term,
    December, 1895.)
    Where parties who are not copartners enter into a joint contract to do the entire work upon a building, but subsequently agree to divide the work between them, each to receive the payment for the portion of the work done by him, such agreement constitutes each of them a subcontractor Under the joint contract, and each has a right to file a separate- lien for the amount due him.
    Appeal from a judgment of this court, entered upon the report of a referee dismissing the complaint.
    . Harris Wilson, for appellant.
    
      Samuel Mullen, for respondent. .
   Daly, Oh. J.

Stroebel, the plaintiff, and one Sehreiber, who were not copartners, signed a contract with the defendant Ochse to do the mason, carpenter and plumber work upon Ho. 297 East Tenth street for the sum of $1,325 ; but immediately after the signing of the contract it was agreed between all the' parties that Stroebel was to get $500 for' the mason work and pay his men, and Sehreiber was to get the balance and pay his men. The effect of this division of the work, while it did not affect the joint liability of Stroebel and Sehreiber for the due performance of their contract, was to constitute each of them subcontractors under the joint contract, Vogel v. Whitmore, 72 Hun, 417. Being subcontractors, each had the right to file a separate lien for the amount due him, and this is what the plaintiff Stroebel did and commenced this action to foreclose it. His action was dismissed on the ground that he should have filed a joint lien with Sehreiber because the evidence showed a joint contract and that no alteration of the contract with defendant’s consent had been made.

It is not. certain that the consent of the defendant to the division of the work or severance of the contract need be shown to give the plaintiff, under his agreement with Sehreiber for a division, the rights of a subcontractor. But in this case the defendant’s assent was proved, and so that objection was out of the way. As a subcontractor Stroebel was not bound to file a joint lien with Sehreiber. It was necessary, of course, to prove the due completion of the work under the joint contract, and this he did. As Sehreiber was made a party defendant to the action, the defendant was amply protected and any defense against his joint contractors was avail- ' able to him. A prima, facie case for recovery was made out, and the complaint should not have been dismissed.

Judgment reversed, new trial ordered, with costs to abide the event.

Bischoff and Pbyob, JJ., concur.

Judgment reversed and new trial ordered, with costs' to abide event.  