#### William F. Morgan, Respondent, *against*Catherine Taylor, Appellant, and John J. Kierst *et*al., Respondents.

(Decided June 3d, 1889.)

In an action to foreclose a mechanic’s lien, the referee found that plaintiff’s lien was so defective as to render it void, and gave judgment in favor of other lienors, defendants. Plaintiff excepted to the referee’s finding,, but took no appeal. *Held,*that on an appeal by the defendant owner from the judgment, plaintiff had no standing in court, and could not ask an order to cure his defective lien.

Under the provision of the consolidation act of 1882 that in such an action, all persons who had filed claims on the property might set forth such claims in their answers and the court might decide “ as to the extent, justice, and priority of the claims of all the parties to the action” (§ 1815), the failure of the plaintiff to establish his claim did not prevent the defendant lienors, who had established valid claims, from obtaining relief in the action. ■

The provision of the act of 1883, amending the consolidation act, that the claim shall state the names and residences of “ all the claimants,” (L. 1883 c. 276 § 14), referred only to those persons interested in the particular claim against the property, and not to all persons having, claims against it.

The statute did not require that the claim should state when the work was done,' or when it was completed ; and the requirement that it should state the “ time given,” was sufficiently complied with, where no time was fixed by the contract for completion of the work, by a statement in the notice that the work was to be paid for in cash when done.

A contractor, prevented by the owner from completely performing his contract, could not, in an action to enforce a mechanic’s lien under that statute, recover the whole contract price, without regard to the work or materials actually furnished under the contract. The lien given was simply to provide additional security for work done and materials furnished; it did not extend to damages for breach of contract.

Appeal from a judgment entered upon the report of a referee in an action to foreclose a mechanic’s lien.

*305The facts are stated in the opinion.

*A. & T. B. Wakeman,*for appellant.

*B. C. Chetwood,*for respondents.

Bookstaver, J.

This action was brought by the plaintiff, a sub-contractor, against the appellant, Catherine Taylor, the owner, and the lienors Kierst and Kelly & Smith, to foreclose a mechanic’s lien. The referee found that the lien filed by the plaintiff was so defective as to render it void. To this finding plaintiff excepted, but from the judgment entered thereon has taken no appeal. He therefore has no standing in court for any purpose, much less to ask for an order of this court at General Term to cure his defective lien. If this can be done at all, which is doubtful,- it can only be granted in the first instance at Special Term upon proper papers.

On the other hand, the appellant contends that, because the plaintiff failed in his claim, the other lienors are entitled to no judgment whatever. The authorities cited do not sustain this contention.

The liens in question, if any, were acquired under chapter XXIII of the Consolidation Act of 1882, as amended by Laws of 1883, chapter 276. Section 1815 of the first mentioned act provides that all persons who have filed claims on the property may set forth such claims in their answers, and the court in "which the action is pending may decide “ as to the extent, justice, and priority of the claims of all the parties to the action,” and must of course render judgment accordingly. Hence the failure of the plaintiff to establish his claim cannot prevent other lienors who have established valid claims from obtaining such relief as they may be entitled to.

The appellant further contends that neither Kierst, the principal contractor in whose favor judgment was entered on the report of the referee, nor Kelly & Smith, the other contractors, had established any valid lien on the premises in ques*306tion. As to Kierst’s claim, it is insisted, “ it is fatally defective on its face,” as by section 14 of chapter 276, before referred to, the claim must state the names and residences of all the claimants, which it does not. This argument proceeds on the theory that “ all the claimants ” means all the persons who have claims against the same property; but it is apparent from the context that this phrase refers only to those who are interested in any particular claim; and this Kierst states fully in the .very first lines of the claim filed.

The objection that the claim is too indefinite is equally untenable ; it is as definite and precise as the circumstances of the case permitted. It is true that it claims more than Kierst is entitled to, as we shall show hereafter, but that fact alone will not vitiate the lien as to work and materials actually furnished, and for which he is entitled to recover in this action. Indeed, it but seldom happens that a lienor files his lien only for the exact amount finally adjudged due him. It is generally made large enough to cover everything to which the lienor may in any event be entitled, for the reason there can be no recovery beyond the amount claimed in the lien filed *(Lutz*v. *Ey,*3 E. D. Smith *621; Protective Union*v. *Nixon,*1 E. D. Smith 671).

The objections to the lien of Kelly & Smith are that the claim filed does not state when the work was done nor when it was completed, nor “ the time given.” As to the first two • objections, the statute does not require that the notice of claim itself must show these facts; it is sufficient if the claim is filed by original contractors within sixty days after the completion of their contracts, and by sub-contractors within thirty days after the completion of the building, furnishing of the material, etc. (L. 1883 c. 276 §14). It would doubtless be convenient to have these data appear on the face of the claim, • but it is not required, and if it is filed within the time specified by the law, the fact may be shown on the trial. The words “ time given,” as used in the last-mentioned section, are ambiguous. They may mean the time fixed for the completion of the work, or the time given for the payment of that work. But it is unnecessary for us to determine which is the *307correct interpretation of these words at this time, for the, case shows that no time was fixed by the verbal contract made with Kelly & Smith within which the work was to be done, and consequently none could have been stated in the notice of claim. And if those words refer to the time given for the payment of the money, then it is sufficiently stated, as the lienors specified that the work was to be paid for in cash when done. We are therefore of the opinion that both Kierst and Kelly & Smith had valid liens on the premises in question.

But the amount due Kierst under his lien presents a much more serious question. The referee has specifically found the amount due him for extra work. He further finds that Kierst substantially complied with his principal contract to a certain point, and was ready and willing to fully perform it, but was prevented from so doing by the appellant; and then finds that the whole contract price was due him by reason thereof without regard to the work or materials actually furnished under it. Appellant’s acts, in preventing the completion of-the contract, relieved Kierst from fully performing it, and gave him a right to claim a lien for the work actually done and materials furnished *(Fallon*v. Lawler, 102 N. Y. 228; *Kingsley*v. Brooklyn, 78 N. Y. 200). The case was tried on the theory that where the contractor is ready and willing to fully perform, but is prevented from doing this through the fault of the other contracting party, he is entitled to the full contract price, although the work was not finished. This rule of law cannot be applied in a case like the present. The action is to foreclose a mechanic’s lien acquired under the acts before referred to. These statutes, as the prior ones on which they were founded, simply provide additional security to the laborer and material men for work or labor done and materials furnished; but such lien cannot be extended to damages for a breach of the contract. The remedy for such breach is by an action at law, for such damages are not a lien upon the property which was to be improved *(Dennistoun*v. *McAllister, 4*E. D. Smith 729; *Radbourne*v. *Seneca Lake Grape*& *Wine Co.,*67 N. Y. 215).

We regret that the case was tried in a way which renders *308it impossible for us to ascertain from the evidence what the value of the work and materials actually furnished is, so that we cannot modify the judgment to conform to the law. It will therefore have to be reversed and a new trial ordered, with costs to abide the event, unless Kierst will reduce the judgment to the amount found due him for the extra work only, which decision must be made within ten days after the entry and service of the order upon this appeal, in which case the judgment, as so reduced, must be affirmed, without costs.

If a new trial is had, Kierst must be allowed the value of the work and materials furnished by him and his sub-contractors under the contract up to the time the appellant prevented him from going on with it; and also for the extra work done and materials furnished by him; but nothing for damages.

Larremore, Ch. J., and Allen, J., concurred.

Order accordingly.