Thomas McMechan, Resp’t, v. William H. Baker, App’lt.Filed November 24, 1890.)Headnote
Mechanic’s lien—Laws 1885, chap. 343.Plaintiff contracted to build certain houses for defendant, the latter to furnish materials. When the buildings were completed except to the extent of seventy-five dollars’ work, plaintiff ceased work on account of defendant’s failure to supply materials, and filed a lien, which stated that it was for labor and services on said houses under a contract, and that all the work claimed for was performed. Held that as there was a substantial performance, and there would have been a literal one but for defendant’s default, the lien was properly filed.
Appeal from judgment in favor of plaintiff in an action to foreclose a mechanic’s lien.
The plaintiff agreed to do the carpenter work on nine houses of the defendant for $1,665. It is admitted that defendant was to furnish the material. There was also extra work done to the amount of $94. Deducting the extra work done on defendant’s house, $30, the plaintiff received $1,245.77, leaving a balance due of $513.23. The trial judge saw fit to credit the defendant with $75 for finishing the work not done by plaintiff for lack of material, and for the balance, with interest, judgment was given for plaintiff. All the work that could be done was done preceding October 20th. Two hundred dollars was then due. The defendant continued to neglect and refuse to furnish proper materials, and on November 7th the plaintiff filed a lien.
Benj. W. Downing, for resp’t; J. 0. & IT. Smith & Koephe, for app'lt.It seems to us that the mechanic’s lien in this case was regularly and. properly filed under Laws of 1885, chap. 342. The work under the contract was substantially performed, and the finding of the court shows that it would have been literally performed if defendant had not refused to supply the materials according to his contract. This view is not in conflict with the decision in Foster v. Schneider, 50 Hun, 151 ; 19 N. Y. State Rep., 449, for, in that case, the work required by contract was only about half done, and the lien alleged it was entirely completed, and to entitle one under § 4 of the statute to file- a lien in such case, it must contain a statement of the work performed and unperformed. It seems to us that defendant should have been credited with thirty dollars payment on the extra work according to the testimony of both parties.
Judgment should be reduced thirty dollars, and affirmed, as modified, without costs.
Clement, Ch. J., concurs.