
    Raphael La Pasta, Respondent, v. Samuel Weil, Impleaded, Appellant.
    (City Court of New York, General Term,
    March, 1897.)
    1. Contract — Extra work.
    Plaintiff entered into a subcontract to furnish ail the stonework for a building for a specified sum, in reliance upon a" statement by the contractor that the walls were to be seven'and one-half feet high, but it was subsequently found that they were to be eleven or twelve feet. After the discovery and while the work was in progress, an agent of the owner and the contractor told plaintiff to go ahead and he would be paid for the extra work. Held, that this constituted a new contract for the extra work. *
    
      2. Evidence — Denial.
    Testimony of a witness that he does not remember a certain - conversation is not equivalent to a denial that such conversation .took place.
    3. Mechanics' lien — Notice. '
    Failure to serve the notice of l.ien within ten days, after filing does not affect the validity of (the lien.,
    4. Same — Extra work.
    Where the basis of a lien by a subcontractor is, a separate contract for extra work made with-the owner, it is immaterial whether any sum was due from the owner to the contractor at the. time'of filing the lien.
    Appeal from judgment ill favor of the plaintiff, entered upon a trial by the court without a. jury.
    Emanuel Arnstein, for appellant.
    Irons & Todd, for respondent.
   Conlan, J.

This is an appeal from a judgment rendered at a Special Term after a trial by the court without a jury, the action having been brought for the foreclosure of a mechanic’s lien for the sum of $450, filed by the plaintiff against John McHally as the contractor and Samuel Weil, owner, and against certain real estate on the easterly side of Amsterdam avenue between One Hundred and Thirty-third and One Hundred and Thirty-fourth streets in the city of Hew York. '

The defendant Weil alone appeals.

It appears from the plaintiff’s testimony, that he entered into a contract with the defendant Medially for the stonework of a building at One Hundred and Thirty-third street and Amsterdam avenue to completion for the sum of $900, on the 13th day of May, 1895, and that Medially told him that the walls were tó be of a height of seven feet and six inches, and the contract price of $900 was fixed for that height of wall, measuring by the number of cubic feet.

. Subsequently it was asserted by' the plaintiff that the 'wall in some places was required to be of a height of eleven.and even twelve feet, as testified to by himself and his foreman, and when this was brought by him to the attention of one Mayer (who, it was admitted, had sufficient authority to represent and-bind Weil), he replied: When you- are ready for the iron beams, call the architect and measure the extra work. I will pay you.”

This was stated in the presence of Medially. The plaintiff testified to a conversation with Medially as follows:

“ I called Medially’s attention to the work I had been doing at the time of the conversation. I had built the wall about eleven feet six or twelve feet, and then Medially said, Go ahead, I will see you have your money.”

It is claimed on behalf of the plaintiff that these promises on behalf of Weil by Mayer'and Medially form the basis of an entirely new-contract, a contract for extra work, and that Mayer, as the representative of Weil, assented to it, and we are inclined to agree with him in this theory.

It can hardly be conceived that the contract of May 13, for $900 for all stonework, which was based upon the height of the wall of seven feet and a half, would have been entered into if it were known that a wall of more than eleven feet in height was really required.

The plaintiff says no specifications were shown to him nor did he ever see any, but that Medially said they called for a wall seven feet and six inches high, and on this the plaintiff seems to have relied for the terms of his contract of May 13, and the conversations detailed by him were, we think, clearly admissible as tending to establish a new contract rather than vary the terms of the contract theretofore existing.

It is proper to say here, that the testimony of the defendant’s witnesses is in contradiction of the portions of evidence in the case above referred to, but we think that the proposition contended for by the plaintiff was established by a clear preponderance of proof.

The witness McNally, as representing the defendant Weil, does not go so far as to say that he did not agree that the plaintiff should be. paid for this extra work, nor indeed was he asked so to testify.

The precise question put to'him by the counsel for the defendant was,'“ Q. Do you remember any such conversation with the plaintiff at any time?” And his answer was simply “No, sir,” which is hardly equivalent to saying he did not have the conversation referred to and falls short of a denial.

The plaintiff’s witnesses in rebuttal make it still more apparént that an agreement for the extra work was actually made by Mc-Nally with the plaintiff, and that McNally undertook to shield himself by the declaration of the witness Todd, who was the plaintiff’s counsel, and was called to the stand to give the conversation between him and McNally after the commencement of this action, when the allegation in McNally’s answer was called to his attention to the effect that he had sworn that no extra work was done by the plaintiff, and he stated that his reason for so doing was that pay for the extra work was due from .Mr. Weil, the owner, and not from him, McNally, and this statement was. not denied.

We are, therefore, of the opinion that the plaintiff has established a contract upon which he is entitled to recover, and in the form as he has brought his action if he has done nothing to defeat ' that right of recovery. ,

The failure to serve the notice of lien within ten days after filing in no way affects the validity of the lien.

The statute never intended any such thing, and we have been unable to find any reported case which has so construed, it.

The object of the service is but notice and to protect the owner against making any payment after notice filed, and to prevent payments by him, thus also- affording a like protection to the lienor.

The only other question presented on this appeal which might in any aspect of the case tend to defeat the recovery is an alleged failure to show that at the time of filing the mechanic’s lien, or at any time, thereafter, there was' any sum due to the defendant McNally from the defendant Weil, but as we have seen that the recovery of the plaintiff is sought upon a separate contract with the owner, having no relation whatever to his contract of May 13, or to that between the owner and contractor, the plaintiff’s right to. recover is not thereby in any way affected. /

From a careful examination of the whole case we are of the opinion that no errors were committed by the trial justice which called for a reversal, and that the judgment was properly entered in accordance with the findings made, and that the judgment, therefore, so entered, should be affirmed.

The judgment, therefore, is affirmed, with costs.

Fitzsimons, J., concurs.

Judgment affirmed, with costs.  