
    Granger A. Hollister et al., Resp’ts, v. Philander Mott, App’lt.
    
    
      (Court of Appeals, Second Division,
    
    
      Filed February 12, 1892.)
    
    Mechanics’ lien—Building contract—Performance by contractor.
    One H. agreed to erect three dwelling houses for defendant M., and connect the same by lateral sewers with a sewer which M. had constructed. The latter was to pay $450 each when the houses were enclosed, and the balance, $540 each, when completed “ according to the terms of the contract.” Plaintiff furnished materials to H. for the buildings. The existing sewer was found to be too'shallo w, M. had it deepened, and H. allowed, the amount paid therefor, but neglepted after completion of the houses to put in the lateral sewers, and M completed them at a cost of $180. H. completed the houses except in the particular stated, and in a few minor-matters. The first payments had been made prior to plaintiffs filing their lien. Held, that there was an abandonment of the contract by the contractor, and there was nothing due to him upon which plaintiffs’ lien could attach.
    Appeal from a judgment of the general term of the fifth judicial department, affirming a judgment entered upon the report of a referee.
    
      M. M. Waters, for app’lt; J. B. Durand, for resp’ts.
    
      
       Reversing 32 St. Rep., 743.
    
   Brown, J.

This action was brought to foreclose a mechanics’’ lien. April 22, 1887, the appellant entered into a contract with John H. Huls, by which Huls agreed to erect for him three-dwelling-houses on land on the north side of Clifford street, in the-city of Bochester, according to plans and and specifications set forth in the contract. Among other things Huls was “ to put in a sewer,” and was to connect.the houses “ with the sewer said Mott-had built on the south side of Clifford street last season, of the same size of sewer as used by said Mott last season, so as to drain all the cellars of said houses, with all the laterals for said sewers for each house. Also to put in the water works for all of said houses.”

The houses were to be completed by August, 1887, and when fully enclosed appellant was to pay Huls $450 on each house and when all the houses were built and completed according to the terms and conditions of the contract he was to pay “ money enough to be equivalent to nine hundred and ninety dollars for each house.”

The respondents’ lien was filed October 10, 1887, and prior to that date they had furnished to said Huls lumber used in the construction of said houses of the value of more than $800, and. prior to that date payments had been made to Huls by the appellant on account of the houses amounting to $2,020.

It appeared that after the work was commenced it was discovered that the sewer referred to in the contract as the one with, which the sewer to be built by Huls was to connect was not deep' enough to drain the cellars of the houses, and thereupon with Huls’ consent the appellant contracted with one Tripp to deepen said sewer and carry it over the course specified in the contract with Huls, so as to drain the appellant’s houses, and also for the right to connect the water for said houses with water pipes to be laid by Tripp to premises adjacent to the appellant’s property, and the putting in of the drain from the houses to-said sewer, and the water connection was by consent delayed until Tripp should complete the work undertaken by him. After Tripp’s work was completed Mott notified Huls to go on and. complete his contract, and thereupon a disagreement arose between the parties in reference to extra expense which Huls claimed he would be put to in doing the work by reason of the deepening of the street sewer.

The evidence as to what occurred is conflicting, but the referee made no finding thereon further than “ that after the completion of said houses in other respects, said Huls neglected to put in the lateral sewers to said main sewer, and to put in the water connections for said houses, and said Mott, after notice to .said Huls, completed the same in these respects at an expense to himself of $180, which the same was worth.” And he further found that Huls fully performed the contract on his part except in the particular stated, and one or two other minor and unimportant matters, and that said houses were fully completed December 6, 1887, and he awarded the plaintiffs a lien upon the ■difference between the contract price and the amount expended by Mott to complete the work specified in the contract

' There was no provision in the contract for the completion of the work by the owner in the event of the failure of the contractor, nor was there any understanding between them that the owner should proceed with the work, nor was there any failure on the part of the appellant to perform his obligations under the ^contract, and in view of the finding quoted that Huls neglected to put in the lateral sewers and the water connection, there was an abandonment of the contract on his part, and the case cannot be distinguished from Larkin v. McMullin, 120 N. Y., 206; 30 St. Rep., 902.

There was nothing due under the contract when the lien was filed, and it could attach only to the payments that should be ■earned under the contract subsequent to October 10th ; and plaintiffs’ right to recover depended, therefore, upon the performance ■of the contract by Huls.

Neither can it be said that the contract was substantially performed so as to bring it within the rule applied by the referee. Van Clief v. Van Vechten, Ct. App., 2nd Div., 42 St. Rep. 736.

The respondent seeks to sustain the judgment on the ground that the contractor was justified in refusing to complete the work until the amount of the extra expense that he would have been put to from the deepening of the sewer was agreed upon. The referee, however, made no finding on that question, and was not requested to make any, and there was no determination as to what that extra expense, if any, would have been, nor whether bad faith was attributable to either party in the disagreement existing as "to the amount to be allowed for that work. The evidence upon the subject was conflicting.

While in some cases this court may assume the existence of a fact in order to affirm a judgment, we are not permitted to do :so where the evidence is conflicting and the trial court has not been requested to determine the fact either way. It follows that there was not nothing due to the contractor upon which plaintiffs’ lien could attach, and upon the authority of Larkin v. McMullin and Van Clief v. VanVechten, supra, the judgment must be reversed and a new trial granted.

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

All concur.  