
    Israel G. Howell and Lawrence W. Rice, Appellants, v. The Brown-Ketcham Iron Works, Respondent.
    (Supreme Court, Appellate Term,
    June, 1908.)
    Building and construction contracts — In general — Eights and liabilities as between contractors and subcontractors.
    Where defendant, who had a contract for the building of a hotel, made a contract with another for the iron and steel work, in which it was provided that, in case the subcontractor for any reason abandoned the work, the defendant might have without charge the use of the derricks and all other tools and appliances in the building, and plaintiffs, without knowledge of the subcontract, agreed with the subcontractor to furnish the iron and steel work on the hotel by a contract containing substantially the same provision as to the use of the derricks, etc., in case the work was abandoned; and where, upon the subcontractor’s failure to make payments to plaintiffs, they abandoned the work and defendant took.possession of their engine, derrick, tools and timber, they are entitled to recover the usable market value of their appliances detained from them and made use of by the defendant.
    Appeal by the plaintiffs from a judgment in favor of the defendant, rendered in the Municipal Court of the city of New York, fourth district, borough of Manhattan.
    John H. Taylor, for appellants,
    Robinson, Biddle & Ward (Herman B. Beecher, of counsel), for respondent.
   Gerard, J.

The action was brought to recover $480 as the reasonable value of the use by the defendant of certain planks, tools and appliances of the plaintiffs for a period of ninety days. There was no substantial conflict of testimony as to any material fact, except the reasonable value of the use of the property.

The defendant had a general contract for the building of a hotel called the Hotel Hargrave. One of the defendant’s subcontractors was the Manhattan Contracting Company, which contracted to furnish the iron and steel work. This contract contains a clause which provides that, in case the contractor for any reason abandons the work on the building, except in case of strike, the said first party (defendant here) may take possession and have the use of the derricks and all other tools and appliances in the building and proceed with the work to a finish, without interruption or any charges for the usé thereof by the party of the second part.

This Manhattan Contracting Company, in turn, made a written contract with the plaintiffs by which the plaintiffs agreed to furnish the iron and steel work on the building.

There is no mention of, or reference in this contract to, the contract of the Manhattan Contracting Company with the defendant.

Plaintiffs testified that they knew nothing of the contract of defendant with the Manhattan Contracting Company. Their contract with the Manhattan Contracting Company contains substantially the same clause as the clause above referred to in the contract between the defendant and the Manhattan Contracting Company.

The Manhattan Contracting Company did not make certain payments which it agreed to make to plaintiffs on the first of December, and plaintiffs, therefore, ceased to do any further work under their contract. Defendant thereupon immediately took possession of the plaintiffs’ engine, derrick, tools and timber; and the claim is made that this defendant had the right to use this property of plaintiffs, and without making them any compensation therefor.

It is argued that the plaintiffs were subcontractors for the iron work and abandoned their contract before completion; but, when plaintiffs were not paid by the Manhattan Contracting Company, that company was the first one to break the contract and the plaintiffs had a perfect right to cease to do any further work on the premises. Merely because there was a similar clause in the contract between plaintiffs and the Manhattan Contracting Company, and the Manhattan Contracting Company and defendant, the defendant is not given the right to make use of, as against these plaintiffs, any right which it had against the Manhattan Contracting Company. There were no contractual relations whatever between these plaintiffs and the defendant, and the plaintiffs are entitled to recover the usable market value of their appliances detained from them and made use of by the defendant.

Gildersleeve and Dayton, JJ., concur.

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