
    D. G. Burton Company, Resp’t, v. Stuart W. Cowen et al., App’lts.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed July 27, 1894.)
    
    1. Appeal—Finding.
    A finding, which cannot be said, with reasonable certainty, to be erroneous, will not be disturbed on appeal.
    2. Abatement and revivor—Another action pending.
    An action to foreclose a mechanic’s lien is not abated by the pendency of an action by a third person, in which the plaintiff was named as a defendant but not served with process.
    Appeal from a judgment in favor of plaintiff.
    
      Stuart W. Cowan, for app’lts Cowan, Beach and Field; Walter R: Beach, for app’lts Rich and Storms; Milo J. White, for resp’t D. Gr. Burton Co.; Joseph S. Wood, for resp’ts Heinsohn and Maxwell; Isaac N. Mills, for resp’ts Spier and others ; Frank M. Buck, for resp’ts Benson and others; David 0. Williams, for resp’ts Duprie and others.
   Cullen, J.

This is an appeal from a judgment in favor of the plaintiff and certain of a defendants against the other defendants, entered on the report of a referee. The action is brought by the plaintiff, which furnished material for the erection of certain buildings, against the owners of the premises and certain other lienors, to foreclose a mechanic’s lien. The contractors abandoned their contract before completion, and the buildings were finished by the owners. After deducting the cost of completion from the contract price, there concededly remained a large sum applicable to the liens ; but there was a bitter dispute as to what that sum was, although the amount of the difference between the parties was comparatively small. The question of'the cost to the owners of completing the contract, and the allowance to be made on one side for defects and delay and on the other side for extra work, was solely one of fact. We are not justified in interfering with the decision of the referee in this respect, even though we might Lave reached a different conclusion ourselves, unless the preponderance of evidence in favor of the defendants was so great that it can be said with reasonable certainty that the findings of the referee are erroneous. Barnard v. Gantz, 140 N. Y 249; 55 St. Rep. 541. A review of the evidence shows that there was a sharp conflict of testimony, but no such clear preponderance as to bring the case within the rule cited. One of the defendants, a lienor, prior to the commencement of this action began an action in the county court to foreclose his lien, filing complaint and lis pendens and serving the summons on the defendant owners. He did not serve the plaintiff in this action, although the plaintiff here was there named as a party defendant. On these facts the defendant owners set up the plea of another action pending. This was overruled by the referee on the ground that the claim of this plaintiff exceeded in amount the jurisdiction of the county court. It is not necessary to express any opinion on the ground of this ruling, as we think the ruling was correct for other reasons. The action was not pending as against this plaintiff till he was served with process. Warner v. Warner, 57 St. Rep. 763; 27 N. Y. Supp. 160; Haynes v. Onderdonk, 5 Thomp. & C. 176. We are also of opinion that under the mechanic’s lien law any lienor may commence his separate action subject to the right of any party to move to consolidate the actions as provided for by that statute.

The agreement between the owners and the contractor fixing the amount of damages for alleged delay, made at the time of the abandonment of the work, was not conclusive on that subject. As the consideration for that agreement and allowance the owners made stipulations on their part relative to deposit of moneys and contests of liens which they wholly failed to comply with. This default on their part avoided the agreement. The judgment appealed from should be affirmed, with costs. All concur.  