#### Arthur F. Riley et al., Respondents, *v.*Samuel Kenney, Appellant, and Patrick Meehan and Mary Murray, Defendants and Respondents.

(City Court of New York, General Term,

December, 1900.)

1. Mechanic's lien — Where the owner completes the work, upon the contractors’ failure, he may deduct the actual cost.

Under a building contract providing that if the contractors do not complete the contract the owner may do so and deduct the cost, he may deduct the actual cost, and the contractors’ expert testimony, as to the sum for which the building could, as a matter of opinion, have been completed, is immaterial.

2. Same — Order on owner must be filed as against sub-contractors.

An order upon the owner, accepted by him, is void under the Lien Law of 1897 as to sub-contractors unless it, or a copy, is filed in the office of the proper county clerk.

Appeal by the defendant Kenney from a judgment in favor of the plaintiffs and the defendants Murray and Meehan, and against the defendant Kenney, for the sum of $390, and directing the sale of certain real property of the defendant Kenney, upon the foreclosure of a mechanic’s lien.

Lemuel Skidmore, for appellant.

J. Philip Berg, for respondents.

Wm. Stainton, for respondent Meehan.

John J. Brady, for respondent Murray.

*385
      *Per Curiam.*

The contract provided, in case of the contractors’ default, that the owner should have the right to take possession of the premises and finish the work. “ The expense thereof to be deducted from the amount of the contract or from any payments due or to become due the contractor.”

Extra work had been contracted for at the agreed price of forty dollars, and on the 2d day of June, 1899, the defendant Kenney took possession of the premises and proceeded to finish the work. The trial court found that he had a right to take possession of the building and complete the same under the contract, and this finding is amply sustained by the evidence. At this time, the .account between the plaintiffs and the owner stood as follows: Amount of contract, $2,635; extra work, $40; total, $2,675, upon which amount the plaintiffs had been paid $1,875, leaving a balance due, on completion of the work, of $800. One of the payments included in the $1,875, to which the defendant is entitled to credit as against the plaintiffs, is that of May 9, 1899, of $500. 'This payment consisted of $25 cash and an accepted order, payable to Church E. Gates, for $475, and in the receipt .given therefor it is stated that the amount is given in full for the second payment under the contract. The acceptance of this ■order and the receipt given therefor, it was properly held, constituted a payment between the plaintiffs and the defendant Kenney, but was invalid as against the defendants Murray and Meehan, subcontractors and lienors, for the reason that a copy thereof was never filed with the county clerk, as required by section 15 of ■chapter 418 of the Laws of 1897 — the Lien Law.

Mr. Kenney did not finish the building until after the 1st of July, 1899, and he testified positively that, in doing the work, he acted in good faith, sought advice of skilled persons as to the purchase of all materials, and bought them at the cheapest rate he was able to get them, and did the work as cheaply as possible; that it cost him to complete the building, according to the specifications, $843.91, and for each item of this amount vouchers were ■introduced in evidence on the trial. There was no dispute as to these expenditures by Mr. Kenney, or that they were not made in conformity with the specifications. In opposition, however, to ■this claim, the plaintiff, Mr. Riley, testified that he could have •finished the building for $335. Thereupon, instead of allowing Mr. Kenney the expense incurred by him in completing the work, *386the court allowed $500 as *“*the reasonable and fair amount to be charged against the contract price for such completion.” This determination was error. Hr. Kenney was entitled, under his contract, to charge against the plaintiffs the sum actually expended by him in completing the building, and expert testimony, as to the cost of completing it, could in no way affect this right. It was necessary, before the plaintiffs could succeed, that they should show what it cost the defendant to complete the contract. They having broken their contract by their delay, had no cause of action except that conferred by the contract, and they could only make out a cause of action by showing what it had cost the defendant to complete the contract; and, unless they were able to establish that there had been negligence in the manner in which the defendant had proceeded fe> complete the contract, that which it cost him was the amount which he was entitled to deduct from the money due on the contract, no matter how many theories might say that it could have been done for much less. Robinson v. Chinese Association, 35 App. Div. 439; Schmohl v. O’Brien, 25 Misc. Rep. 699; Dyer v. Osborne, 28 id. 234; Zimmerman v. Jourgensen, 14 N. Y. Supp. 548.

With respect to the claims of Hurray and Heehan, a different condition prevails. They had valid liens for the respective amounts of their claims. The accep/ced order for $475 is invalid as against them and, even deducting from the amount the excess of $43.21, paid by Hr. Kenney in completing the building, there remain at this time $431.09 applicable to the payment of these liens, aggregating $266.50.

Judgment appealed from affirmed with respect to the liens of Hurray and Heehan, together with their disbursements on this appeal, but without cosits, and in other respects reversed and a new trial ordered, with costs and disbursements to the appellant to abide event.

Present: HcOarthy, O’Dwyer and Scotchman, JJ.

Judgment affirmed with respect to liens of Hurray and Heehan, without costs, and in other respects reversed and new trial ordered, with costs and disbursements to appellant to abide event.