#### Sherman A. Genung, Respondent, *v.*Frederick E. Hawkes, as Sole Executor, etc., of Emma Toles, Deceased, Appellant.

Third Department,

November 12, 1913.

Lien.—foreclosure of mechanic’s lien — violation of agreement not to file lien.

Where, in an action to foreclose a mechanic’s lien on defendant’s property for material furnished to a contractor, it appeared that the contractor had failed to perform his contract and had been discharged; that there was no money due him from the defendant, and that although the plaintiff agreed not to file a lien in consideration of the defendant’s promise to pay him for said materials, less a certain discount, he did file *31a notice of lien a few days thereafter, a denial of the foreclosure of the lien on the ground that there were no moneys due from the defendant to the contractor at the time of the filing thereof was proper, and the filing of the notice by the plaintiff was a violation of his agreement with the defendant, which precludes him from recovering thereon, and a money judgment in his favor should be reversed and the complaint dismissed.

Appeal by the defendant, Frederick E. Hawkes, as executor, etc., from part of a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Tioga on the 19th day of March, 1913, upon the report of a referee appointed to hear and determine the issues.

*Frederick E. Hawkes,*for the appellant.

*Charles C. Annabel [James O. Sebring*of counsel], for the respondent.

Smith, P. J.:

The action was originally brought to foreclose a mechanic’s lien upon defendant’s property for material furnished to one Mosier, who, under contract, was improving said property. The court has denied to the plaintiff the foreclosure of the lien on the ground that there were no moneys due from the owner to the contractor at the time of the filing of the hen. A money judgment, however, was awarded as against the defendant in favor of the plaintiff upon the ground, that the defendant’s testatrix had for a valuable consideration agreed to pay the debt. The case was originally brought on for trial before Mr. Justice Horton in the sixth district. When his term of office expired the case had not been decided, and it was stipulated that he might retain the case and decide the same as referee so that the judgment was entered upon his decision as referee.

From the findings of the court it appears that Mrs. Toles’ husband made a contract with one Mosier to make certain repairs upon the house upon Mrs. Toles’ property for between $800 and $900. The materials furnished by the plaintiff were furnished to Mosier as such contractor.. Part of the materials went into the improvements upon Mrs. Toles’ property and part of them went on some other house that Mosier was building. Mosier failed to perform his contract, so that Mrs. Toles was required to discharge him from further work upon the contract. The finding is to the effect that no moneys were *32thereafter due from Mrs. Toles to said Hosier. The finding of the referee is that after the discharge of Hosier the defendant’s intestate agreed with plaintiff “that the plaintiff should discount his account five per cent, should make an estimate for her use of the amount that it would cost to complete the house at No. 31 Lyman avenue, and should not file a lien upon the said premises, and in consideration thereof she, the said Emma Toles, would pay the said account of the plaintiff for materials furnished, less the five per cent, without delay. ” This agreement was made upon August 12, 1909. About twelve days thereafter the plaintiff did file a notice of lien upon the property for these very materials furnished, and it was this lien that was sought to be foreclosed in this action. One of the contentions of the defendant is that the plaintiff has violated his part of the contract by the filing of the notice of lien. The learned referee has held otherwise. In his opinion he says: “ The promise of the plaintiff at the request of Mrs. Toles, not to file a lien must, I think, be eliminated; for, if the plaintiff did not have a right to file a lien upon her premises, then there could be no consideration for her promise to pay the plaintiff’s account. It has already been found that the plaintiff could not at this time have filed a lien upon the decedent’s premises that would have been valid.” In this reasoning I am unable to follow the learned referee. As to the interpretation which must be given to the plaintiff’s contract as found by the court there can be no doubt. The object sought to be accomplished by the defendant’s intestate was that there should be no notice of lien filed which might affect her credit and cause her annoyance, and the agreement of the plaintiff not to file a lien must fairly be deemed an agreement not to file a notice of lien. The filing of such notice, therefore, was a violation of the agreement on his part, which precludes him from recovering against the defendant’s intestate upon the contract. The judgment thus awarded was, therefore,. improper and must be-reversed, with costs, and the complaint dismissed, with costs.

All concurred; Kellogg, J., in result.

Judgment reversed, with costs, and complaint dismissed, with costs.