
    Bernard Mahon, Resp't, v. Anna M. Guilfoyle et al., Appl’ts (3 cases).
    
      (New York Common Pleas, General Term,
    
    
      Filed March 7, 1892.)
    
    Municipal corporations—Lien—Abandonment op contract after part PERFORMANCE.
    Plaintiff and G. entered into an agreement whereby G. agreed to pay plaintiff $1,500, and have the benefit of certain partly performed street grading contracts after completing the same. Six weeks after G. executed’ this agreement he died, without having paid the $1,500. His administrators did some work on the contracts, but finally abandoned them, and they were completed by plaintiff. The administrators filed liens for the work done by themselves and their intestate. Held, in an action to vacate the liens, the contract price of the work not being divisible, and the work having been abandoned uncompleted, that the administrators were not. entitled to the lien.
    Appeal from three separate judgments in favor of the-respondent and against the appellants, entered upon three-separate reports of a referee.
    
      Robert G. Ingersoll and Mason F. Prosser, for app’lts; L. Laflin Kellogg, for resp’t.
   Bookstaver, P. J.

These appeals present substantially the same questions, and it was stipulated that the testimony taken in any of the cases might be read in the others as if taken on the trial of that action, and it is necessary, therefore, to consider the three cases together.

From the evidence it appears, that the respondent was the owner of two contracts which he had entered into with the mayor, aldermen and commonalty of the city of New York, one for regulating, grading and curbing One Hundred and Thirty-eighth, street, from -the Boulevard to Tenth avenue, made between him and the Mayor, etc., on the 26th February, 1887; and the other for filling Edgecombe avenue, between One Hundred and Forty-first street and One Hundred and Forty-fifth street, made between the same parties on the 30th October, 1886; and of still a third for regulating, grading and filling One Hundred and Thirty-second street, from Tenth avenue to Broadway, assigned to him on the 3d of March, 1887, by Frederick Thilemann, Jr., with the work partly done. The three actions were brought, among other things, to declare the separate liens filed by the appellants on the-2d day of July, 1887, against the moneys alleged to be due on these contracts void, and to procure them to be cancelled and discharged of record. Such an action is authorized by paragraph 1829 of the consolidation act, which provides that “actions to-determine or terminate such liens may be commenced by the said contractor or the city in any court of competent jurisdiction.”

The referee has found, without exception on the part of the appellants, that on the 9th day of March, 1887, the plaintiff '{respondent) entered into an agreement with one William Guilfoyle, now deceased, by the terms of which it was agreed that Ouilfoyle should pay to the plaintiff the sum of $1,500 in consideration of the amount of money that would be due to Bernard Mahon for the regulating and curbing of One Hundred and Thirty-eighth street, from the Boulevard to Tenth avenue; and Ouilfoyle further agreed to place the excavation which was to be done on One Hundred and Thirty-eighth street from Tenth avenue to the Boulevard, on One Hundred and Thirty-second street from Tenth avenue to Broadway, and the remainder of the material from One Hundred and Thirty-eighth street he agreed to put in the filling of Edgecombe avenue between One Hundred and Forty-first and One Hundred and Forty-fifth streets, and in consideration of ■doing that work the respondent agreed to pay to Guilfoyle one-half of the moneys, after paying for the material used on said street, received from the city of Hew York for the contract relating to One Hundred.and Thirty-second street between Broadway and Tenth avenue. It is conceded that the $1,500 was not paid, and it is also conceded that the contracts were finished by the’ respondent.

It appears from the evidence that William Guilfoyle died on the 22d April, 1887, after he had performed more or less work upon these contracts; that thereafter some work was done by the appellants as his legal representatives. The referee has found that the appellants thereafter abandoned the work under the contracts, and the respondent was compelled to complete them. There is no doubt but that the evidence fully justified the referee in this finding. It was testified to not only by the plaintiff and several witnesses on his behalf, but Mrs. Guilfoyle herself practically admits it, and even admitted it in writing, although on the trial she claimed that she did not fully understand the language of the receipts given by her, as well as that she did not understand the full purport of the contract; but her acts and declarations in regard to the abandonment are clear and decisive.

This contract was an 1 entire one. It required, first, the doing of the entire work on One Hundred and Thirty-eighth street; ■second, the taking of all that excavation to Edgecombe avenue or One Hundred and Thirty-second street; third, the paying of $1,500 to the plaintiff out of the moneys obtained on One Hundred and Thirty-eighth street; and, fourth, the receipt by Guilfoyle of one-half of the One Hundred and Thirty-second street money after payment for the material. Hone of these promises and covenants on the part of ^Villiam Guilfoyle were carried out •either by him or his administrators. Hone of the contracts were fully completed and none of the moneys paid. The One Hundred and Thirty-eighth street contract was not substantially completed, as only $844 had been earned by all of the parties up to ■June 13, 1887. It is, therefore, a contract in which the price is not divisible, and in which no payment could be demanded until performed entirely, or at least substantially. Butler v. Butler, 77 N. Y., 472; Smith v. Brady, 17 id., 173; Crane v. Knubel, 61 id., 645. And it is well settled that where there is an abandonment of the work by a mechanic before its completion without any fault of the owner, there can be no lien. Phillips on Mechanics' Liens, 193; Kinney v. Sherman, 28 Ill., 520; Dennistoun v. McAllister, 4 E. D. Smith, 729; McNeal v. Clement, 2 T. & C., 363; Am. & Eng. Enc. of Law, Vol. 15, p. 78, and cases there cited.

But appellants contend that the respondent after Guilfoyle’s death made a contract with his widow, before letters of administration were granted, whereby she individually undertook to complete the work, and that thereby the personal representatives of Guilfoyle were prevented from doing it, or were relieved from the necessity of completing the work, and consequently that they had a valid lien at least for the work actually done by Guilfoyle before his death.

The difficulty with this position is that there is no finding by the referee that such a contract was ever made, nor was there any request made to him to find that fact. We have examined the testimony upon that subject, and do not think that it would have justified such a finding on the part of the referee had it been made. It is true that there was a conversation between the respondent and Mrs. Guilfoyle soon after her husband’s death and before her appointment as administratrix in regard to the continuance of the work, but we think it looked to the continuance of that work, not by Mrs. Guilfoyle on her own account, but as representative of the estate when she should have been appointed such; at any rate it is clear that nothing was done on the faith of that conversation until after she and Mr. King were appointed ■administratrix and administrator of Guilfoyle’s estate on the 30th ■day of April, 1887, and the money referred to in that conversation was not loaned until the 2d of May, 1887. Besides this, it is difficult to see how the making bf such an agreement with Mrs. Guilfoyle, the widow, could relieve Mrs. Guilfoyle, the administratrix, from performing the contract; she cannot thus separate herself into two different characters só as to relieve her in one capacity from doing the work which she undertook to do in the -other.

Had the lien been filed merely for work done by William Guilfoyle in his lifetime, and which he was prevented from completing -on account of his death, it is possible that it would have been held sufficient to maintain an action upon a quantum meruit under such' circumstances. But it was not the theory upon which the liens were filed. The appellants contend either that they had fully completed the work or had been prevented from so doing by the respondent, which is not the case.

Having arrived at this conclusion, it is not necessary to determine whether or not the lien is invalid because the defendants have not stated therein the terms, time given and conditions of the contract, or whether or not the lien is invalid because the personal representatives of the deceased had no right or authority to file the lien for work done during the life of William Guilfoyle. It may be further said that the conclusion to which we have arrived works no substantial injustice to the appellants. The plaintiff was entitled to $1,500 and to have his work done on One Hundred and Thirty-eighth street, and, besides that, filling furnished for One Hundred and Thirty-second street and Edgecombe avenue. Instead of receiving this money with this work, he was obliged to finish the work under the entire contract under penalties for delay imposed. Up to July 15, 1887, he and Guilfoyle and Guilfoyle's representatives together had only earned $844.52; the $1,500 he never received. In the Edgecombe avenue contract the amount earned according to the city surveyor on the 16th of June, 1887, when betook the measurements, was 7,465 cubic yards, which at twenty-five cents per yard amounted to $1,866.25. Guilfoyle was paid $1,500 on account of this contract. Had Guilfoyle lived and kept the contract and worked steadily on it until the 16th of June, there would then have been due to him only $366.25. But from the 1st to the 16th of June the plaintiff was engaged in doing the work which Guilfoyle should have done, and it is much more than probable that that work together with the penalties would have left nothing whatever due upon that contract As to the One Hundred and Thirty-second street, contract, it was shown that the plaintiff, after the abandonment of it by Guilfoyle and his representatives, furnished 3,000 cubic yards of filling. There is no evidence from which we can determine how much filling Guilfoyle did; if he had furnished the whole remaining 4,177 yards at twenty-eight cents, there would have been due on this $1,169.56, from which should have been deducted the penalties caused by delay, leaving a balance of $489 only, of which Guilfoyle would have been entitled to one-half, $244.50, after the payment for stone, curbing, the price of-which has not been proved in this case, but which in all probability equalled this amount. Besides that, in this particular case, the respondents and Guilfoyle were jointly interested in it, and in the profits to be made from it. It is therefore difficult to perceive-how any lien could under such circumstances be acquired by one of the parties as against the other.

The judgments in each of these cases should therefore be affirmed, with costs.

Bischoep and Pryor, JJ., concur.  