
    Walter Powers, Appellant, against Isabella Hogan, Respondent.
    (Decided May 22d, 1884.)
    Although the parties to a building contract have waived performance of it within the time fixed therefor, if thereafter the owner refuses to allow the builder to continue the work, the latter, without making a demand of performance on the part of the owner within a reasonable time, may recover upon a quantum meruit for the work done.
    Appeal from a judgment of this court entered upon the report of a referee.
    The facts are stated in the opinion.
    
      Francis B. Chedscy, for appellant,
    
      M. J. Farley, for respondent.
   Larremore, J.

This action was brought to foreclose a mechanic’s lien, filed October 18th, 1880, in favor of the plaintiff for $12,810, upon certain premises in the City of New York owned by the defendant. All the issues were heard and decided by a referee appointed for that purpose, from whose rulings and decision this appeal is taken.

The referee found for the plaintiff upon the facts alleged in the complaint, but decided that as it appeared that the contract in suit had not been fully performed by the plaintiff, and he had not shown a sufficient legal excuse for abandoning it, no recovery could be had upon a quantum meruit ; that as the time fixed by the contract for its performance had been waived, the plaintiff was bound to notify the defendant of his intention, and demand performance upon his part within a reasonable time. This precise point was decided in Lawson v. Hogan (93 N. Y. 39), where a contract similar in character in relation to the same premises was in dispute.

■ But this case presents another feature both distinctive and conclusive.

The referee has found, among other reasons, that the plaintiff failed to perform on account of the refusal of the defendant to allow him to continue his work; that he continued in its performance according to directions until September 8th, 1880, when he was stopped and forbidden to further complete the same by Hogan, who acted therein by the authority of the defendant.

If these facts be true, and there is evidence to support them, there was an abandonment of the contract by the defendant, and the rule in Lawson v. Hogan is not applicable.

Neither notice nor demand was necessary upon such a refusal of performance.

The judgment appealed from should be reversed and a new trial ordered, with costs to abide the event.

Yah Hoeseh and Beach, JJ., concurred.

Judgment reversed and new trial ordered, with costs to abide event.  