
    John H. Van Clief et al., App’lts, v. Hannah R. Van Vechten et al., Resp’ts.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed May 14, 1888.)
    
    Mechanics’ lien—Not limited to the amount payable under a contract AT THE TIME OF FILING THE LIEN.
    The mechanics’ lien law limits the lien to the difference between the contract price of the building, etc., and the amount paid, but does not limit the liability of the owner of the property to such portion of the contract price as may he payable according to the terms of the contract at the time the lien is filed.
    Appeal from a judgment rendered by the county court of Eichmond county upon the report of a referee.
    
      Thornton, Earl & Kiendl, for app’lts; Ezekiel Fixman, for resp’ts.
   Barnard, P. J.

—The facts in this case are not in dispute. The defendant Van Vechten is the owner of a lot in Eichmond county. She contracted with the defendant Smalle to furnish the materialand erect and complete a building thereon for the sum of $4,298. Smalle was a carpenter and he subcontracted with defendant Newman to do the mason work. Smalle bought of the plaintiff material for the building to the amount of $1,264.35 and Newman purchased material for the building of the plaintiff to the amount of $405.75. Both these sums are wholly unpaid and all the materials actually went into the building. The defendant had paid the contractor $2,000 on account of the contract price when the contractor abandoned the contract. The plaintiff filed this lien in proper form and within the proper time. There was nothing due the contractors when the work stopped under the terms of the contract, and there is no proof showing the value of the building in its incomplete state. It cost to complete the building, for carpenter and mason work $1,672, for stairs and closing in building $241.80. The contractor did not furnish certain articles which were to be allowed by the court at the sum of $275. There was allowed to the architect $100 for extra service preparing for and overseeing the completion of the contract. This left $920 as the difference between the contract price and the amount paid, and the referee should have given judgment for the sum in any view of the case. There is some question whether the architect’s charge should have been allowed, but it is not necessary to pass upon this question now, as the plaintiffs are entitled to have their claim considered on an entirely different basis from that adopted- by the referee. When the work stopped, there was $1,670.10 of the plaintiff’s property in the house. A payment of $800 was substantially earned.

The hen law limits the lien to the difference between the money paid and the contract price, it is true, but it is not the intention of the hen law to limit the owner’s liability to such portion of the contract price as happens to be payable according to the terms of the contract when the hen is filed. The true question is, what was earned under the contract at the time of the filing of the plaintiff’s hen? There is proof tending to show that' a very considerable sum had been earned over and above the $2,000 payment, and this sum, whatever it may be, is the fund to which the plaintiffs have an equitable right under the hen law. Heckmann v. Pinkney, 81 N. Y., 211.

The judgment should be reversed and a new trial granted, •costs to abide event and order reference vacated.

Dykman and Pratt, JJ., concur.  