
    Irving Wright, Resp’t, v. Harriet E. Roberts et al., App’lts.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed February 15, 1887.)
    
    Mechanics’ lien—When right to, perfected.
    By the general lien law (Laws 1885, chap. 342), when an owner builds directly, or by a contractor, or when a structure is put upon premises by the consent of the owner thereof, a lien is given in favor of those furnishing labor or material thereon. It is not necessary that the contract be fully performed that there may arise a right to a lien for work or material furnished thereunder.
    
      Q. H. Phelps, for app’lt; J. L. Millard, for resp’t.
   Barnard, P. J.

Roberts agreed with one Lyons to sell him a lot of land on Highland avenue, Tarrytown. The price of the lot was to be $1,000, but before Roberts was to give a title a house was to be completed and paid for by installments by Roberts to the extent of $4,000. When done Roberts was to either take a mortgage for $5,000, of find a person to take the same, was to deduct $1,000 for the land and convey. Subsequently the parties made a new agreement involving an exchange of lands to be made at once. Lyons was to complete the house on the same terms as to payment, was to do other work on other houses and the entire payment was to be $14,000 to be made by Roberts to Lyons, from which was to be deducted the balance upon.the exchange of lands, which was in favor of Roberts, as the prices were fixed between the parties. By a still subsequent agreement Lyons gave up the right to purchase and was to complete the house on the original terms as to money payments. The present lienors did work and furnished materiáis on what is called the Paige house, being for and on account of work covered by the second agreement. Lyons went on under the three contracts until he and his partners failed. He did work upon the first and second contracts in excess of the difference between the exchange to the extent of $4,000, and $5,000 on the Paige house. The contract was not completed by Lyons, but the liens were filed in due time after they put these materials in his work. The appellant urges that the right to a hen did not exist when it was filed, because the contract was never finished. There have been many lien laws with more or less varying provisions. Many decisions were made under them, and all are now repealed, and chapter 342, Laws of 1885, is a state law for the whole state. -A lien is given when the owner builds directly or by a contract, and when the structure is put on with “the consent of the owner,” and upon the “lot, premises, parcel or farm ” upon which the building is to stand or does stand. The act contains this clause at the end of section 1. “ But in no case shall such owner be liable to pay by reason of all the liens filed pursuant to this act, a greater sum than tlie price stipulated and agreed to be paid on such contract and remaining unpaid at the time of filing such lien; or in case there is no contract, that the amount of the value of such labor and material then remaining unpaid except as hereinafter provided.” In Heckmann v. Pinkney (81 N. Y., 211), the words of the lien law were that the total amount of the lien 1 ‘ must not exceed the amount which the owner would be otherwise liable to pay at the time of the filing of the claim.” The court held that this clause was solely intended to Emit the liability of the owner in the aggregate to the amount which he had contracted to pay after deducting such payments as he had made before the filing of the lien. The present Hen law limits the Hability to the stipulated price of the contract and remaining unpaid at the filing of the lien.

The evidence, as has been observed, shows that a sum of money had been earned according to the agreed price for an excess of all payments to Lyons, and more than sufficient to pay the Honors.

There is no provision in the act which directly or inferentially requires the contract to be performed fuUy as against a lien for work and materials furnished by a contractor.

If the plaintiff and the other Henors have put their property into the Paige house, and if at the agreed price, deducting aU payments at the time_ of the Hen, there is enough to pay them, the act of 1885 gives the Hen.

The judgment should therefore, be affirmed, with costs.

Pratt, J.

The findings of fact are sustained by the evidence and justify the conclusions of law.

We find no errors that could affect the result, and are satisfied with the decision at special term, which, in our opinion, gives justice to all parties.

Judgment affirmed, with costs.

Dykman, J., not sitting.  