
    Landsberg and Company, Plaintiff, v. Hein Construction Company and Others, Appellants, Impleaded with Buckley, Woodhull & Burns, Respondent, and Leon Bernstein and Others, Defendants.
    Second Department,
    December 30, 1909.
    Contract — delivery of materials under — foreclosure of mechanic’s lien — payment — effect of acceptance df promissory note on right to file liens.
    Where a sub-contractor delivers lumber which is receipted for by the foreman of the contractor and used in the work, and it is of the same kind and quality mentioned in the sub-contract and of the same price, it will be held to be delivered pursuant to the contract, although it called for a different size.
    In an action to foreclose a mechanic’s lien, the fact that promissory notes have been accepted in payment is not a waiver of the right of the sub-contractor to file a lien where the time of payment is not extended beyond the time within which an action must be commenced to enforce the lien.
    Appeal by the defendants, the Hein Construction Company and others, from a judgment of the Supreme Court in favor of the defendant Bucldey, Woodhull & Burns, entered in the office of the clerk of the county of Kings on the 11th day of November, 1908, upon the decision of thé court rendered after a trial at the Kings County Special Term.
    
      Samuel Silbiger, for the appellants.
    
      Frank M. Avery [Henry W. Eaton with him on the brief], for the respondent.
   Woodward, J.:

The respondent, Buckley, Woodhull & Burns, a corporation, is a mechanic’s lienor, having filed a notice of lien, prior to the lien of plaintiff, for a balance due for lumber and timber. This corporation was. made a party defendant, answered and set up its lien, and asked for a foreclosure thereof and, in the alternative,, for a personal judgment against the defendant Hein Construction Company, the owner of the real property and the purchaser of the lumber. The plaintiff and certain other defendants did not appear upon the trial, and the questions determined related to the respondent’s lien against the premises of the defendant the Hein Construction Company and those claiming under such company.

In April, 1906, the Hein Construction Company was engaged in the construction of twenty-seven houses on real estate owned by it, and the respondent, Buckley, Woodhull & Burns, made a written proposition for the furnishing of lumber and timber to be used in the work, the details of which are unnecessary to the determination of the questions presented upon this appeal. This proposition gave the prices of the materials to be furnished, and, as to some of these, the quantity was not mentioned, except that it' apparently contemplated furnishing so much as was found necessary for the several houses. There is no dispute that the respondent furnished the materials mentioned in such proposition upon the order of the Hein Construction Company to an amount aggregating $10,868.05, and that there was paid on account of such deliveries the sum of $9,609.04, leaving a balance of $1,259.01, and for this amount the respondent’s lien, was filed on the 17tli day of May, .1907. On the 18th day of March, 1907, the Hein Construction Company gave to the respondent its two promissory notes, indorsed by A. H. Heirt, treasurer of the company, these notes being payable respectively on the 18tli day of May, 1907, and the 28tli day of May, 1907, but these notes wére never in fact paid. The principal question litigated, and the one which in our opinion must determine this appeal, is whether the last delivery of materials was made less than ninety days before the filing of the mechanic’s lien, and this ques- . tion has been determined by the court below in favor of .the respondent. There is no dispute that deliveries were made from time to time Under the provisions of the proposition submitted by the respondent, the first delivery having been made on the 24th day of April, 1906, and the evidence clearly justified the finding of the learned court below that there was a delivery of materials under such proposition as late as the 23d day of March, 1907, such materials having been receipted for by the superintendent of construction employed by the Hein Construction Company, and a portion of them being shown to have' been actually used in the work then under way upon the houses mentioned in such proposition. It is true that in the receipt given for the materials received on the 23d day of March, 1907, the sizes are smaller than those mentioned in the proposition, but the material is of yellow pine of the. same quality therein mentioned, and at the samé price, and it would be a refinement of reasoning not justified in a tribunal which seeks to do justice to hold that this latest delivery was not made, as had those which had preceded it, in the 'fulfillment of the respondent’s proposal.. This being established, that the last delivery was made on the 23d day of March, 1907, the ninety days allowed by the Lien Law (Gen. Laws, chap. 49 [Laws of 1897, chap. 418], § 10) in which a lien may be filed, did not expire until the 21st day of J une, 1907, while the notes which had been given in payment of tills claim were due and payable during the month of May, 1907, and those notes never having been paid, could not operate as a waiver of the respondent’s right to file its lien on the 17th day of May, 1907, for the law is well established that the right to acquire a mechanic’s lien will not be waived by the extension of credit unless the time of payment is extended beyond the time within which an action must be commenced to enforce the lien. (Happy v. Mosher, 48■ In. Y. 313, 319; Mott v. lansing, .57 id. 112, 115; Matter of Froment, 125 Ápp. Div. 647, 649; Fhcenice Iron Go. v. “ Hopateong <& “ Musconeteong,” 127 B. T. 206, 212; Woolf v. Schaefer, 103 App. Div. 567, 572, and authorities there cited.)

The judgment appealed from should be affirmed, with costs.

Hirsohberg-, P. J., Jenks, Thomas and Miller, JJ., concurred.

Judgment affirmed, with costs.  