
    Brooklyn Structural Steel Corporation, Appellant, v. Levy Dairy Company et al., Respondents, Impleaded with Others.
    
      Brooklyn Structural Steel Corpn. v. Levy Dairy Co., 177 App. Div. 885, affirmed.
    (Argued April 16, 1919;
    decided May 2, 1919.)
    Appeal from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered March 13, 1917, affirming a judgment in favor of defendants entered upon a decision of the court on trial at Special Term in an action to foreclose a mechanic’s hen. On the 13th of November, 1913, the defendant Levy Dairy Company entered into an agreement with the defendant Rutan & Cooper, Inc., whereby that defendant agreed to provide the work and materials necessary and proper towards the erection of a certain building on or before April 15, 1914. By its terms time was declared to be of the essence of the contract and the sum of $50 per day fixed as liquidated damages in case of delay in completion. The building was not finished until five months after the time stipulated in the contract and thereafter it was agreed between the contractor and the dairy company that the latter should retain $4,500 of the contract price as its damages for delay. The plaintiff, a subcontractor, takes the position that such retention was not the equivalent of a payment and that, therefore, this amount is still due in the hands of the Levy Dairy Company and subject to its lien'.
    
      George H. Taylor, Jr., for appellant.
    . Moses Feltenstein for respondents.
   Judgment affirmed, with costs; no opinion.

■ "Concur: Hiscóck, Ch. J., Chase, Collin, Cuddeback, Hogan, McLaughlin and Crane, JJ.  