p. 364A general objection to a copy of the lien offered, in evidence, that it is “.not properly certified,” is not sufficient; the particular defects objected to should be specified, so that the plaintiff may furnish the proper proof.
A notice of lien which particularly describes the work done under the contract, and states that the lienor " performed extra work in or about the building and premises aforesaid, and -furnished materials therefor ” of a certain value, is sufficient.
4. Same—Contract—Abandonment.
Where the owner fails to pay as agreed, the contractor may abandon the work and charge a quantum meruit price for the work done.
Appeal from, judgment in fayor of plaintiff, entered on the report of a referee.
Action to foreclose a mechanic’s lien.
The notice of lien stated that the nature and amount of the lien claimed was as follows:
“ I, the said Alexander M. Hunter, entered into a contract witn the owner hereinafter named by the terms of which I agreed to perform certain labor and furnish certain materials in and about the alterations and repair of the dwelling house on the premises hereinafter described, and to build a chicken house thereon and to build a servant’s dining room thereon and to alter and repair the carriage house and stable thereon, for which she agreed to pay the sum of $2,800. That all of said work was duly performed by me, and she has paid on account thereof $2,650 and no more. That at her request I also done and performed certain extra work in and about the building and premises aforesaid, and furnished certain materials therefor, of the reasonable value and amount of $675.51, no part of which has been paid. That all of the said work was done and completed and said materials were finally furnished within ninety days immediately preceding the date of this notice, and all the work and labor for which the claim is made has been actually performed, and said materials have been actually furnished, and I claim a lien upon said buildings and the land upon which the same stands, for the sum of $825.51, with interest thereon from the 22d day of August, 1885.”
The copy notice offered on the trial was certified simply by the words, “ a copy,” signed by the clerk.
Fromme Brothers, for app’lt; J. F. Harrison, for resp’t.
The defendant is the owner of a house upon which the plaintiff agreed to do certain work for the sum of $2,800. The work has been done with a trifling exception and there is due the plaintiff upon the contract $149.50. The plaintiff did extra work upon the building and the referee has found that there is due to the plaintiff for that the sum of $672.01 besides interest. There is no proof of the precise day upon which the’lien notice was filed'in the Westchester county clerk’s office. It seems to have been assumed that the day of filing was 29th of August, 1888. The counsel for the plaintiff stated that as the day of filing accompanied by a certified copy of the notice filed. Objection was only taken to the form of the certification and that
p. 365only by a general objection that it was “not properly certified.” The notice states the work to have been completed within ninety days immediately preceding the date of the notice and that the interest will be demanded from the 22d of August, 1888,' and the notice is dated August 28th and a copy was served on the owner August 30, 1888, and no motion for a dismissal of the complaint for lack of proof was made. Under this proof, without a specific objection or in some way calling for proof of the filing of the notice, the referee was justified in finding the lien to have been filed the day stated by the counsel as the day of filing and that the work was done within ninety days preceding the filing. Hor can objection be made that the certificate was not more formal. Whenever the objection would permit the party to furnish the proper proof, a formal general objection will not suffice to put the party on his guard. A certified copy is. made evidence by § 8 of chap. 342, Laws of 1885.
The lien notice was sufficient under the lien law. The whole notice must be read together. The notice is very particular as to that part of the claim which is included in the regular contract. The claim for the extra work is stated to have been performed upon the same premises and the material to have been furnished therefor. The claimant states that he performed service and furnished materials which have been used in the owner’s house. The notice and amount of the labor and service and the materials furnished are sufficiently stated. The owner claimed that there was a contract for the construction of certain fences at an agreed price outside of the $2,800 contract which the lienor failed to do. The plaintiff denies this allegation. He testifies “ there was no contract made with regard to the fence.” The referee has found that the plaintiff did not fail to complete the fence contract, but the plaintiff admits that the fencing never was completely done. Assuming, therefore, a contract to do a piece of fencing for $140 and a failure to complete it, no ground is established for denying a lien for one contract and extra work upon another. Ho counterclaim was set up for the failure to perform the contract for fences ; and the referee has allowed nothing for fencing beyond what was done, being some forty feet of temporary fence. The owner failed to pay as agreed and the contractor could abandon the work' and charge a quantum meruit price for the work done. Hone of the exceptions noticed upon the appellant’s points seem to have any injurious effect upon the issues tried between the parties.
The judgment should therefore be affirmed, with costs
Dykman and Pratt, JJ., concur.