
    Michael J. Moriarty, Appellant, v. The Board of Education of the City of New York, Defendant, Impleaded with Patrick Sullivan, Respondent.
    First Department,
    April 6, 1906.
    Mechanic’s lien — recovery on quantum meruit for work on failure to prove contract.
    In an action to foreclose a mechanic’s lien for labor performed by a sub-contractor in plastering a schoolhouse, the court having found that no written contract existed, but that the plaintiff had performed certain work, the question of the amount and value of such work should be determined, and where the defendant’s figures as to the former taken with the testimony of plaintiff on cross-examination as to the latter show a balance due the plaintiff, a dismissal of the complaint is error and a new trial will be ordered.
    Appeal by the plaintiff, Michael J. Moriarty, from a judgment of the Supreme Court in fávor of the defendant Patrick Sullivan, entered in the office of the clerk of the county of New York on the 7th day of March, 1905, upon the decision of the court, rendered after atrial at the New York Special Term, dismissing the complaint upon the merits.
    
      Percival S. Menken of counsel [Menken Brothers, attorneys], for the appellant.
    
      Thaddeus D. Kenneson of counsel [Kenneson, Emley & Rubino, attorneys], for the respondent.
   Clarke, J.:

This action was brought to foreclose a municipal lien filed by the plaintiff against the defendant Sullivan with the comptroller of the city of New York and the board of education, for labor alleged to have been performed by plaintiff for defendant Sullivan in plastering a certain schoolhouse which Sullivan was under contract with the board of education to erect and build. The dispute ■is between contractor and sub-contractor. The complaint alleges that on or about November 3, 1903, “plaintiff entered into a contract with the defendant contractor, Patrick Sullivan, * * * to plaster * * * the first part to be erected of * .* * Public School Building No. 106 * * * and to supply and furnish all the labor and materials necessary therefor, for the , agreed-price or sum of Eighty-five hundred dollars, payments for the said work to be made as it progressed, é'ighty-five per- cent of the work done during its progress, and the balance or fifteen per cent thereof -when the work was fully-finished,-it being'understood, and agreed, however, that the plaintiff was to order the materials from the materialman directed by defendant Patrick Sullivan, and to give orders upon said Patrick Sullivan for such materials so purchased, the same to be deducted from -the amount of plaintiff’s contract. * * * That the plaintiff * * # on or about the 5th day of December, 1903, duly .entered in and upon- the performance of said contract and continued performing his part théreof until on or about the 21st day of December, 1903, when the defendant Patrick Sullivan, without right or canse, wrongfully broke the said contract and prevented plaintiff from entering upon said premises to complete and carry out the balance of said contract. * * * That the amoirnt of labor for plastering under the contract * * exclusive * * * of the materials, amounted to the sum of Twenty-nine, hundred and fifty dollars, no part or portion whereof has been paid * * * except the sum of One hundred and thirty-two and 65/100 'dollars, and .that-there-is now justly due and owing * * * the sum of Twenty-eight hundred and seventeen and 35/100 dollars.” A personal judgment was demanded. '

It will be seen, therefore, that this is not an action for damages for breach, of contract, hut for an amount claimed to be due for-work done under a contract. The learned court in his findings of fact found that the defendant Sullivan did not enter into the contract set up in the complaint, with the plaintiff. There is evidence to support this finding. He further found “ That the defendant Patrick Sullivan did not enter into any.contract with the plaintiff with respect to the plastering work in the first part to be erected of Public School Building No-. 106.” If by this is meant a. “ written ” contract' there is evidence to support the finding, and that-this is the meaning is evident from the next finding: That the plaintiff performed certain work, labor and services, consisting of plastering work in and-upon the building hereinbefore mentioned.”

The court having- found that there was no contract and that the plaintiff had performed certain work, labor and services, the question to be determined was how much had been done, what was the fair and reasonable value thereof, and how much had been paid therefor. The court found that there was nothing due and dismissed the complaint upon the merits.

On the trial plaintiff conceded credits amounting to $1,019.19, having a balance claimed of $1,890.81. The plaintiff claims that he did 6,000 yards of scratching and browning at forty-six cents a yard, which would amount to $2,760, and 1,000 yards of scratching at fifteen -cents a yard, $150. There is no evidence in the case of the reasonable value of this work other than plaintiff’s. It was brought out by defendant on cross-examination and while an attempt by defendant in his case would show another amount per yard, the testimony was stricken out by the court — so that upon the theory of quantum meruit, which the court adopted, forty-six cents per yard for browning and scratching, or thirty-one cents for browning and fifteen for scratching, is established as the reasonable value thereof. The defendant claims that 4,000 yards of browning was done, which, at thirty-one cents, would be $1,240; 1,900 yards of scratching, $285, which would make a total of $1,525: and if credit is given to the defendant of a payment of $135 to laborers, which plaintiff claims should not have been charged against him, the full amount paid would be $1,154.19, which, accepting defendant’s figures, would leave $370.81 due. There is no way of reconciling the testimony with the findings of the court as to the amount earned, paid or due, and the judgment must be reversed and a new trial ordered, with costs to the appellant to abide the event.

O’Brien, P. J., Patterson, Ingraham and Laughlin, JJ., concurred.

Judgment reversed, new trial ordered, costs to appellant to abide event. Order filed.  