
    Thompson-Starrett Company, Appellant, v. Brooklyn Heights Realty Company, Respondent.
    Second Department,
    March 16, 1906.
    Mechanic’s lien — no lien for tearing down buildings under contract to • erect other buildings — no recovery on quantum meruit may be had in an action on a mechanic’s lien when the lien not established—when architect’s certificate necessary. - ■
    A builder under contract to erect a building in the place of old buildings to be demolished by him, and who has merely razed the old buildings and reaped a profit from the side of the materials to a sub-contractor, but has not in any way performed his contract to build, except to draw plans, is not entitled to a mechanic’s lien on the breach of the contract by the owner. The demolition of the old buildings is not the performance of labor for the “ improvement of real property ” within the meaning of the Lien Law. In.ah action to foreclose such lien the complaint is properly dismissed and there can be no recovery "on a quantum meruit under section 3412 of the. Code' of Civil Procedure, for no personal judgment can be had under said'section without establishing some portion of the lien. _ '
    The plaintiff in such action must fail when he does not allege and prove the issuance of. an architect’s "certificate required by the contract as a condition precedent to payment.
    Appeal by the plaintiff, the Thompson-Starrett Company, from • a judgment of the Supreme Court in favor of the defendant, -entered in the office of the clerk of the county of Kings on the 6th day of ■May; 1905, upon the decision of the court rendered after a trial at the Kings County Special Term dismissing the complaint upon the merits.
    
      Charles L. Kingsley, for the appellant.
    
      John Hill Morgan, for the respondent.
   Rich, J.:

This is an appeal from a judgment dismissing the plaintiff’s complaint. The action was brought to foreclose a mechanic’s lien. The defendant was the owner of real property in the borough of Brooklyn, upon which were old buildings. On March 9, 1904, it entered into a contract with the plaintiff, in which the latter undertook and agreed to furnish all the materials and perform all the labor necessary and required for the erection and completion of an apartment hotel upon said premises for the sum of $892,500. Under the provisions of this contract the plaintiff caused the buildings to be torn down and removed, receiving therefor, from a sub-contractor, $3,500, without incurring or paying any expense in connection with such work. The contract was silent -in regard to the ownership of the materials in such buildings after demolition, but it was established on the trial that when a building contract was silent on such subject all materials in the buildings torn down belonged to the contractor. The plaintiff caused plans for the proposed new building to be made by its employees, during the preparation of which an engineer, in plaintiff’s employ, went to the site, examined the buildings and condition of the earth to determine the weight and style of the foundation to be constructed, and also examined a party wall between the old building and an adjoining one that had to be cared for and guarded against injury in excavating by plaintiff. This was done to learn existing conditions in order to intelligently make the required plans for the new building. Aside from this nothing was done by the plaintiff under the provisions of the contract.

The defendant was required, when >the buildings were razed to the ground ” to pay all existing incumbrances upon the property and execute a bond secured by a first mortgage thereon, in favor of plaintiff or any person it might designate, in the sum of $800,000; to pay $50,000 when the steel work was erected to a height of four stories, and $42,500 when all the steel frame was up. The defendánt was, unable, to perform its agreement to pay the existing mortgages on the property, and the plaintiff thereupon'filed the mechanic’s lien, to foreclose which this action was brought.

The memorandum opinion of the learned trial justice is as follows : “ Plaintiffs have a claim against defendant for breach of' contract, but cannot foreclose it in this lien action, because the f making of plans for- building gives no lien, (Rinn v. El. Power Co., 3 App. Div. 305.) The tearing down’of a building-gives no lien; in this cáse plaintiffs have been more than paid for that work. As-there could not be a lien, there can be no personal judgment. (Mowbray v. Levy, 85 App. Div. 68.) Judgment for defendant, ,wi£h costs.” In this conclusion we think he was clearly right.There is nothing in the case Under consideration tending to remove x it' from the principle declared in Rinn v. Electric Power Co. (3 App. Div. 305) that the simple preparation - of plans and -specifications gives no right to a lien, and is: not embraced within the Lien Law of th¿ State, with the exception of the fact that, in Order • to qualify himself forthe proper preparation of such plans plaintiff’s engineer visited the premises and inspected' the building, ground and adjoining party Wall, and the tearing down of the buildings, which does not constitute such an active participation in the manual functions of the construction', of a proposed building as to take the case out of the operation of such principle.- There was no construction in fact of any kind; the excavation for the foundation was not even done, consequently there was no supervision or superintendence of construction ; all that, was done was- the preparation of the plans, the tearing down of the old buildings and removal of the materials of which they were composed. There is an entire absence of the “ concurrence of plans and superintendence ” upon which liens were sustained in the cases to which our attention is directed. '

The plaintiff contends- that the demolition of the old buildings is the performance of labor for the “ improvement of real property ” within the meaning of the Mechanics’ Lien Law (Laws of 1897, chap. 418, art.= l), and makes its lien, to the extent of the value- of such work, valid and enforcible; and being valid in part authorizes arid entitles it to a personal 'judgment for the damages it- has sustained by defendant’s breach of contract. But this contention overlooks the fact that for'such services the plaintiff incurred ¿0 expense whatever and actually received $3,500 over and above the value of such labor. For such work there was nothing due it from the defendant, and there being no debt of the owner there can be no lien upon the owner’s land. The contention of the plaintiff overlooks the further fact that the statute referred to defines the word “ improvement ” as being “ work done upon such property, or materials furnished, for its jpermanent improvement.” The tearing down of an old building can hardly be said to permanently improve the naked land. I do not think that it was within the intention of,the lawmakers that such work should give the person performing.it a lien, and such a construction of the statute is not warranted. While the plaintiff may have a cause of action against the defendant for a breach of contract, and be entitled in such action to recover the damages it has sustained, such cause of action furnishes no basis for a lien and gives no right of recovery in this action.

The appellant also urges that it was entitled t,o recover in this action upon a quantum meruit, its complaint alleging the existence and breach of a contract by defendant, without fault on its part, and that the reasonable cost and value of the labor doné and performed by it was $2,500. In support of this contention section 3412 of the Code of Civil Procedure and Shirk v. Brookfield (77 App. Div. 295); Boyd v. Vale (84 id. 414), and Baumann v. Manhattan Consumers’ Brewing Co. (97 id. 470) are cited.

There is no question of the correctness of the principle declared in these cases, but it is not applicable to the case at bar, for the reason that before it could avail the plaintiff it mijst have been established that some portion of the lien sought to be enforced was valid and enforcible, in which event a personal judgment for the balance due and unpaid might properly have been rendered, and the case is barren of such evidence. This court has held that where no valid lien is acquired a personal judgment is not authorized by the section of the Code cited. (Mowbray v. Levy, 85 App. Div. 68.) If a personal judgment is not' authorized there could be no recovery upon a quantum meruit. Were this not so the right to such recovery, given by section 3412 of the Code of Civil Procedure, is expressly limited to such sums as are due plaintiff, “ or which he might recover in an action on a contract against any party to the action.” Here again the plaintiff is confronted by an unsurmountable obstacle, for it failed to allege or prove upon the trial that it obtained of the architect' the certificate required in the contract as a condition precedent to a right of "payment, or that such certificate was reasonably withheld. The evidence,- therefore, fails to establish that there was anything due from the defendant when the lien was filed, and the provisions of section ■ 3412 of the Codé. of Civil Procedure do not aid or sustain plaintiff’s contention.

Ho errors appear that would justify reversal, and the judgment must be affirmed, with costs.

Hiesohbeeg-,, P. J., Jenks, Hookeb and Millee, JJ., concurred.

Judgment affirmed, with costs.  