
    Ferdinand Steiger, Appellant, v. Julius London and Moses Press (Otherwise Known as Moe Press), Respondents, Impleaded with Louis Meryash and Others.
    First Department,
    December 9, 1910.
    Contract — abandonment of building contract — termination of contractor’s employment by owner — when contractor may recover contract price less sums paid and expense of completing work—appeal — modification of judgment.
    A building contractor entitled to payment in installments as the work progressed, who, having received payment for the Work already done, refuses '.to proceed unless paid a future installment, abandons the contract without legal justification.
    But where the contract provides that if the contractor fail in performance, the owner, after certification of the failure by his architect, may on notice provide the labor and material and deduct the cost thereof from sums due or to become due the contractor, and shall be at liberty to terminate the latter’s employment .and to employ other persons to finish the work, etc., the contractor, although his employment was terminated by the owner after part performance, is entitled to recover the contract price less.the amounts already paid and the cost to the owner in completing the work.
    Where in a suit to foreclose a mechanic’s lien all the facts necessary to a determination of the amount due have been found by the Special Term, the Appellate Division will correct the. amount of the judgment without sending the case back for a new trial.
    Appeal by the plaintiff, Ferdinand Steiger, from a judgment of the Supreme Court in favor of the defendants Julius London and Moses Press, entered in the office of the clerk of the county of Méw York on the 25th day of March, 1910, iipon the decision of the court, rendered after a trial at the Mew York Special Term, dismissing the complaint upon the merits.
    
      loids 0. Van Boren, for the appellant.
    
      Joseph M. BrosJcauer, for the respondents.
   Scott, J.:

The plaintiff appeals from a judgment dismissing his complaint in an action to foreclose a mechanic’s lien for materials furnished and work done under a contract by which plaintiff agreed to do the plumbing work in four houses owned by the defendants London and Press. By the terms of the contract the plaintifE was to be paid in five installments of unequal amounts as the work progressed. A time arrived, in November, 1906, after the plaintifE had completed a part of the work and furnished a good deal of material, that he became apprehensive lest the defendants might be unable to pay him his future installments, and refused to proceed further unless he was paid the next installment of the contract price, or furnished with security therefor. At this time he had been paid the first two installments due under the contract, and the third installment was not yet due. There was, therefore, no legal justification for his refusal to go further with the work. Upon this evidence the court at Special Term found that plaintifE had abandoned the contract and could recover nothing thereunder, notwithstanding, as it also found, that the amount paid to.-f.he plaintifE for the first two installments, plus the amount expended by the owners to complete the work was less than the total contract price. That- the ^plaintiff abandoned his work without- legal cause is undoubtedly true, bmr-YlAt¿Y -Dr not that abrogated the contract, so as to deprive him of anyi^Ttsm,,Uj^M|another question which depends updn the action taken at the time by the' owners. A very similar state of facts was considered by the Court of Appeals in Fraenkel v. Friedmann (199 N. Y. 351). The contract under consideration in that case,contained the identical clause which is contained in plaintiff’s contract and which reads as follows : “ Art. Y. Should the contractor at any time refuse or neglect to supply a sufficiency of. properly skilled workmen, or of materials of the proper quality, or fail in any respect to prosecute the work with promptness and diligence, or fail in the performance of any of the agreements herein contained, such refusal, neglect or failure being certified by the architect, the owner shall be at liberty, after three days’ written notice to the contractor, to provide any such labor or materials, and to deduct the cost thereof from any money then due or thereafter to becóme due to the contractor under this contract; and if the architect shall certify that such refusal, neglect or failure is sufficient ground for such action, the owner shall also be at liberty to terminate the employment of the contractor for the said work and to enter upon the premises and take possession for the purpose of completing the work included under this contract, of all materials, tools and appliances thereon, and to employ any other person or persons to finish the work, and to provide the materials-therefor; and in case of such discontinuance' of the employment of the contractor [he] shall not be entitled to receive any further payment under this contract until the said work shall be wholly finished, at which time, if the unpaid balance of the amount to be paid under this contract shall exceed the expense incurred- by the owner in finishing the' work, such excess shall be paid by the owner to the contractor; but if such expense shall exceed such unpaid balance,. the contractor shall pay the difference to the owner. ■ The expense incurred by the owner as herein provided, either for furnishing materials or for finishing the work, and any damage incurred through such default, shall ,be audited and certified by the architect, whose certificate thereof shall be conclusive upon the parties.” ' The Court of Appeals held that under this clause it was optional with the owner, upon default of the contractor, either to put an end. to the contract and stand upon his legal rights, or ■ to terminate the contractor’s employment as provided by the contract and proceed under the contract to complete the work and furnish the materials as provided for therein. Wlia-t tile owner did in the case cited was to send a letter to the contractor reciting his default in the performance of the contract, and the architect’s certificate to that effect, and concluding as follows: “ I hereby advise you that your employment as contractor is terminated and, I shall enter upon the said premises and take' possession for the purpose of completing the- ,work- included in the contract myself, an.d shall employ such persons and provide such materials therefor as I deem proper and necessary.” The Court of Appeals held that th/e notice did not amount to a termination of the contract, but merely to a termination of the plaintiff’s employment under the contract, and that having taken this course the owner must pay the ’contractor the contract price, less the amount necessarily expended for the completion thereof as provided by the clause of the ebn tract hereinbefore quoted. The notice given by the owner in the present case, was almost identical in tenor with that abcjve quoted. It inclosed and referred to the architect’s certificate of plaintiff’s default in carrying out the contract and then proceeded: “ Pursuant to the tenor of said certificate and the option given us under Article Y of the above recited contract, you are hereby notified that we' hereby terminate your employment for the said work and shall now ourselves enter upon the premises and take possession for the purpose of completing the work included under said contract, of all materials, tools and appliances thereon and to employ any other person to finish the work and to provide the materials therefor as authorized by the terms of said contract.” It is - rare that the parallel between two cases is so close as that between the case at bar and that cited from the Court of Appeals, and the same result must follow, that the plaintiff is entitled to recover the contract price less the amount he has been paid plus the sum that it cost, the owner to complete the contract work. Fortunately all the facts necessary to determine the amount thus due have been found by the Special Term so that it will not be necessary to send the case back for a new trial. The contract price was $13,200. . The plaintiff had been paid prior to his default $4,500. The owner expended in completing the work after plaintiff’s default $7,821.53. The plaintiff is entitled to judgment for the difference between the sums of the last two amounts ($12,321.53), and the contract price of $13,200, being $878.47, with interest.

The judgment appealed from must, therefore, be reversed and a judgment, directed in favor of the plaintiff for $878.47, with interest, but without costs in this court or the court below because of the greatly exaggerated claim for damages embraced in the complaint.

Ingraham, P. J., McLaughlin, Clarke, and Dowling, JJ., concurred.

Judgment reversed and judgment ordered for plaintiff as directed in opinion, without costs in this court or in the court below. Settle order on notice.  