#### Oscar W. Freidenrich, Respondent, *v. Nathan*Woodhull Condict and Steele *&*Condict, Appellants, Impleaded with The Mount Sinai Hospital of the City of New York, Respondent.

First Department,

March 20, 1908.

' 1 • Guaranty of machine — mechanic’s lien — payment — order upon owner —personal judgment against contractors.

Where a contractor installing a refrigerating plant has guaranteed its performance, but against his protest and consent is compelled by the agents of the owner to install it in such manner that it will not develop its full .efficiency, ■ he is relieved from his guaranty, and the owner is liable for the contract price although the machine does not fulfill the guaranty.

A sub-contractor, furnishing materials to the contractor, by taking an order upon the owner, is not presumed to receive it as absolute payment irrespective of whether the amount can be collected from the owner.

When such sub-contractor files a mechanic’s lien for materials furnished and in a suit of foreclosure joins the contractor as party defendant, the court may render a personal judgment against the contractor.

When contractors made parties defendant on the foreclosure of a mechanic’s lien against the owner have filed no liens and do not ask that the plaintiff’s lien be enforced, they are not entitled to a money judgment against the owner, as the latter is entitled to jury trial upon such an issue. It is only where a party has filed a mechanic’s lien that upon a failure for any reason to establish the lien, a money judgment may he given.

Appeal by the defendants, Hathan Woodhull Condict and another, from a judgment of the Supreme Court in favor of the defendant The Mount Sinai Hospital of the City of New York, and in part in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 21st day of June, 1907, upon the decision of the court, rendered after atrial at the New York Special Term, awarding damages to the plaintiff and dismissing the complaint and the counterclaim of the defendant Condict as to the defendant The Mount Sinai Hospital.

*Frederick*Iiwlse, for the appellants.

*F. R. Minrath,*for the respondent hospital.

*Lawrence Arnold Tanzer,*for the plaintiff, respondent.

*808Houghton, J.:

The defendant Condict contracted to install a refrigerating plant for the defendant The Mount Sinai Hospital, and guaranteed that when installed it would produce three tons of ice every twenty-four hours and maintain a twenty-ton refrigerating capacity on live steam at eighty pounds pressure, or exhaust steam at one pound back pressure. This contract was claimed to have been assumed by the subsequently formed corporation, the defendant Steele *&*Con-dict. The plant was installed under the supervision of the hospital architect. Steam for the running of the plant and connections from the boilers were to be furnished by the hospital.

The plaintiff’s assignor supplied a certain portion of the plant under a sub-contract, and was given an order upon the hospital for the amount due, which it refused to pay. A mechanic’s lien was thereupon filed and this action was brought for its foreclosure.

The contention of the defendant hospital on the trial was that the plant when installed did not fulfill the guaranty as to capacity, and hence no final payment became due on the contract which could be applied to the satisfaction of plaintiff’s lien. Quite irrespective of their answers, however, but without any proper objection thereto, defendant sought to show that this failure resulted from improper installation insisted upon by the hospital agents.

From the. record it would seem the trial court did not give due weight to the facts proved showing the plant failed to do the work guaranteed because it was improperly installed under the . direction of the architect and engineer of the. hospital. Defendant' Hathan W. Condict, the original contractor, was a man of many years’ experience in. installing refrigerating machines, and was patentee of the machine to be installed, and had erected and put in operation upwards of one hundred plants, and had charge of the installing of the present one in behalf of the defendants. For its proper working the machine required a free circulation of steam. The hospital .architect and engineer each informed him that the plans of the building were such that pipes could not be run so that this could be accomplished, and insisted that another system would do just as well. Condict repeatedly and consistently protested against the form of construction which they insisted upon, and told them the machine was not built for any different conditions, and *809that it would not work if installed in the manner they demanded. He finally yielded and put in the steam- pipes and connections as they directed, insisting that he would not be responsible for the working of the machine installed in that manner. After it was completed and he was asked to test it he declined to do so, saying it was no use to do it because he could tell as well beforehand as after that the machine would not work. Subsequent tests proved that he was correct and that the best production the hospital experts could obtain was a fifteen-ton refrigerating capacity. One of these experts testified that in his opinion the parts and pipes of the machine were too small for a twenty-ton capacity, and that under no circumstances could it be made to do that amount of work. It was tried under one pound exhaust steam back pressure and did not work. Ho one, however, tested it at eighty pounds live steam pressure as the contract provided. Oondict testified that if there had been the free circulation of steam which he had insisted was necessary the machine “ would have performed its duty ” specified by the contract. He was not asked directly his opinion as an expert whether or not the machine would have‘fulfilled the contract requirements if the pipes had been placed in the manner he described as proper. But throughout his testimony he explains why refrigerating power was lost from lack of circulation of steam and why it was necessary that it should circulate, and how circulation was prevented by the manner in which the architect and engineer had insisted upon the plant being installed; and the whole trend of his testimony is that the machine failed to work because it was installed improperly, and that it would have worked properly had he been permitted to install it in the manner in which he insisted it should be. There is nothing contradicting this evidence except the testimony of the experts employed by the hospital, who said that the machine did not do the work required, and that of the one witness who gave it as Ms opinion that the machine was not big enough in any event to do the amount of refrigerating work contracted for. The architect was not sworn: nor the engineer, and there was, therefore, no contradiction of Condict’s testimony that he continuously protested against installing the machine in the manner directed, and continually insisted that it would never do its work properly. Oondict did say that the machine pumped enough *810brine to do the required work, but subsequently explained that from lack of proper circulation the far end of the pipes did not do its part of the work.

If the machine was installed in the manner dictated and insisted upon by the hospital, which manner turned out to.be wrong and the cause of its failure to work, then the contractor was relieved from his guaranty and the hospital should pay for the machine whether it met the guaranty or not. There is no pretense that the machine was not finally made complete notwithstanding the delay, which was caused by the hospital or was waived by it.

The court held there was nothing due the contractors and dismissed the complaint as against the hospital, but gave a money judgment to plaintiff against the contractors. They alone appeal, the plaintiff standing satisfied with the personal judgment which-he obtained against thein.

The court was right in determining that the order upon the hospital taken by the plaintiff’s assignor was not received in absolute payment whether the amount was collected from the hospitaler not.'

It was also right in giving, a personal judgment against the com tractors for the amount due the. sub-contractors. A lien in proper form had been filed' for material furnished in the improvement of ■real property as the installation of the ice plant was. The rights Under that lien having been assigned to plaintiff and he having brought his'action and made the contractors parties defendant, and a valid lien in form thus existing, it was proper for the court to render a personal judgment against the cont2'actors indebted for the material furnished. *(Hawkins*v. *Mapes-Reeve Construction*Co., 82 App. Div. 72; affd., 178 N. Y. 236; C*lapper*v. Strong, 41 Misc. Rep. 184; affd., 90 App. Div. 536.)

The court was also justified in finding that the defendant the Steele & Oondict corporation assumed to carry out the contract with the hospital, and that the plaintiff’s assignor, therefore, had a claim against it for materials furnished, as well as against' Oondict individually. The defenda2it Oondict by his answer admitted that plaintiff’s assignor furnished the refrigerators mentioned in the complaint and that they were installed in the Mount Sinai Hospital, and that the amount claimed by plaintiff had not been paid; and in addition asked the court to render a pei’sonal judgment against him for the *811difference between the amount due and the amount of the order which he claimed was given in absolute payment. The plaintiff’s money judgment against the two defendants must, therefore, be affirmed.

It is suggested- that the contractors have no right of appeal as against the defendant hospital. The record does -not disclose that they served their answers upon the attorney for the hospital, their codefendant, b,ut it was asserted upon the argument that such was the fact, and we think we would be'justified in so assuming. Their answers, however, did not ask that plaintiff’s alleged lien be enforced but demanded that his complaint be dismissed because the alleged order given to his assignor had been taken in absolute payment. The contractors filed no lien and hence they could not recover a money judgment against the hospital because it was entitled to a jury trial on that issue. It is only where a party has filed a mechanic’s lien that upon failure for any reason to establish the lien a money judgment may be given. *(Deane Steam Pump Co.*v. *Clark,*87 App. Div. 459.)

The most we can do, therefore, even if we were disposed to do more, is to remove any difficulty which the contractors might possibly experience in another action against the hospital, by modifying the judgment so that it shall provide that the determination in the present action shall be no bar to any future action which they may see fit to bring against it to recover upon the contract or for any extra work performed.

As "so modified the judgment should be affirmed, with costs to each respondent.

Patterson, P. J.,. Laughlin and Clarke, JJ., concurred.

Ingraham, J.:

In this -case the only question, as I view it, that is presented on this appeal is as to the validity'of the judgment in favor of the plaintiff against the appellants. There is no question presented as between the defendant and the Mount Sinai Hospital. The Mount Sinai • Hospital made a contract with its codefendant, Hathan Woodliull Condict, for the installation of a refrigerator plant in its hospital building then in course of construction. Condict made a subcontract with the plaintiff which was completed by the plaintiff, *812but upon which Condict failed to pay. Whereupon the plaintiff filed a lien against the hospital property and commenced this action to foi’eclose that lien, alleging that there was an amount due by the hospital to Condict in excess of the plaintiff’s claim. Both Condict and the hospital interposed answers, hut the record does not show that the Condict answer was served upon the hospital, and the only judgment demanded hy the Condict answer against the hospital is to recover a small sum of money which it was alleged in the answer ■was due to Condict over and above the amount of the plaintiff’s claim; but as it does not appear hy the record, and counsel on the argument did not state as a fact that the Condict answer was served upon the hospital, the court could grant to Condict no relief against the hospital. (Code Civ. Proc. §.521.) When the ease came on for trial the plaintiff sought to prove that there was due by the hospital to the defendant Condict a. sum of money in excess of that claimed, and the defendant Condict joined with the plaintiff in attempting, to prove that fact. That fact the ■ hospital denied, and the learned judge found as a fact that the defendant Condict, having failed to construct the machine in accordance with the provisions of his contract with the hospital, the damages sustained hy the hospital in consequence of Oondict’s failure to comply with his contract which was in excess of the amount due .to Condict under the contract, neither the defendant Condict nor the plaintiff as assignee of the whole or any part of the claim of the defendant Condict, is entitled to any recovery against the hospital, but further held that the plaintiff was entitled to a money judgment against the defendant Condict for the amount due to the plaintiff under his contract with Condict, and upon this decision a money judgment was entered in favor of the plaintiff against the defendant Condict, the complaint being dismissed as to the hospital. 'The plaintiff,, being satisfied with his judgment, did not appeal, but the defendant Condict appealed; and the case is'before us on his appeal. The right of the plaintiff to a money judgment .against. Condict is not disputed. What Condict appeals from is the refusal of the court to allow him any relief as against the hospital, or the refusal of the court to award the plaintiff a judgment foreclosing his. mechanic’s lien.

It seems to me quite clear that the defendant Condict cannot *813appeal because the court has not awarded to the plaintiff all the relief asked for. That was a matter as between' the plaintiff and the hospital. If the plaintiff was satisfied with his conceded right for a money judgment against Condict, Condict was not aggrieved, and he could not ask the court to reverse the judgment so as to give to the' plaintiff a lien upon the property of the hospital. Condict has not paid the judgment and, therefore, cannot claim to he subrogated to any right of the plaintiff to prosecute this appeal, or to enforce this lien against the ¡iro'perty of the hospital, and there is no theory, so far as I can see, upon which the defendant Condict can object because the plaintiff was not afforded all the relief he demanded. The failure of Condict to serve his answer upon the defendant hospital'precluded the court from determining any question in controversy between Condict and the. hospital, and as the court below had no power to give to the defendant Condict any relief as against the hospital, we certainly are not justified in reversng the judgment because the court has refused to give Condict such relief.

Without considering, therefore, the merits of the case, it seems to me that we can do nothing else blit affirm this judgment. As it is claimed, however, that the question as between the hospital and Condict was never determined because of the inability of the court to grant Condict any relief in this action, I think the judgment' appealed from should be modified by providing that the determination of this question should not be a bar to a further action brought by Condict against the hospital to recover the amount due to him under the contract, and, as thus modified, the judgment should be affirmed, with costs in favor of the plaintiff against the defendant Condict.

Judgment modified as directed in opinion, and as modified affirmed, with costs to each respondent. Settle order on notice.