#### William F. Morgan, Plt’ff and Resp’t, *v.*Catherine Taylor, Owner, App’lt, Impleaded with John J. Kierst and Kelly & Smith, Resp’ts.

*(New York Common Pleas,*

*General Term,*

*Filed June 3, 1889.)*

1. Mechanic’s liens—Report of referee that lien of plaintiff was, defective—Exception—Appeal by other parties from judgment— Plaintiff no standing in court.

_ The action was brought by the plaintiff against the owner and other lienors to foreclose a mechanic’s lien. The referee reported that the lien of the plaintiff was defective and void, to which report the plaintiff ex- ' cepted, but having taken no appeal from the judgment entered thereon, he has no standing in court for any purpose on an appeal taken by other parties to the action, much less to ask for an order of the court at general term to cure his defective lien.

2. Same—When and where motion to cure defective lien must be MADE.

A motion to cure a defective mechanic’s lien can only be granted, if at all, in the first instance at special term, upon proper papers.

3. Same—Effect of a finding that plaintiff’s lien was defective as TO OTHER LIENORS.

The report of the referee having found the plaintiff’s lien defective and void, it does not follow that the other lienors, who are made defendants, are not entitled to judgment; and the failure of the plaintiff to establish his claim cannot prevent the other lienors, who have established valid claims, from obtaining such relief as they may be entitled to.

4. Same—Consolidation act 1882, chap. 28—Laws 1883, chap. 276, § 14— What lien filed must state. *'*

A mechanic’s lien filed under chapter 23 of the consolidation act of 1882, and section 14 of chapter 276 of the act of 1883, is not required to state the names and residences of all the claimants who have claims against the same property, but only the names of those who are interested in any particular claim.

5. Same—Effect of claiming more than menor is entitled to.

A mechanic’s lien because it claims more than - the lienor is entitled to, will not be vitiated as to the work and materials actually furnished. Liens are generally made large enough to cover everything to which the lienor may, in any event, be entitled, for the reason that there can be no recovery beyond the amount claimed.

6. Same—Notice of claims need not show when the work was done, OR DATE OF COMPLETION—TlMB WITHIN WHICH CLAIM MUST BE FILED.

The statute (§ 14, chap. 276, Laws of 1883) does not require that the notice of claim itself must show when the work was done, or the date of completion; it is sufficient, if the claim is filed by an original contractor within sixty days after the completion of his contract, or if by a sub-contractor, within thirty days after the completion of the building, furnishing of the materials, etc. It is not required to have these data upon the face of the claim, if it is filed within the time specified by the law ; they may be shown on the trial.

7. Same—Laws 1883, chap. 276, § 14—Meaning of words “time given" AS USED IN THIS SECTION.

The words “ time given ” as used in this section are ambiguous. ' They may mean the time fixed for the completion of the work, or the time given for the payment of the work, but it is not necessary for the court to determine the correct interpretation of the words in this case.

*618. Same—Unfinished contract—What lien contbactob entitled to.

Where a contractor who is ready and willing to finish his contract is-prevented from so doing, by the owner, the contractor is relieved front finishing the work, and may claim a lien for the work actually done and materials furnished, but he cannot claim a lien for the full contract price, as if the contract had been fully carried out.

9. Same—Lien cannot be extended to cover damages fob bbeach of-contract.

A mechanic’s lien can not be extended to cover damages for a breach of the contract by the owner. The remedy in such case is an action at law for such damages.

Appeal from a judgment entered' upon the report of a. referee in favor of lienors Kierst, Kelly & Smith, against Catharine Taylor, owner.

*Wakeman & Campbell,*for def’t; *B. C. Chetwood,*for »resp’t.

Bookstaver, J.

This action was brought by the plaintiff,, a sub-contractor, against the appellant, Catherine Taylor, the owner, and the lienors above mentioned, 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 thereupon 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 23 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, the1 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 question. As to Kierst’s claim, it is insisted, “it is fatally defective on its face; ” -by section 14 of chapter 276, before referred to, the claim must state the names and resi*62dences 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. Section 14, chap. 276, Laws 1883.

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 the work. But it is unnecessary for us to determine which is the correct 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 *63much 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. N., 228; *Kingsley*v. *City of Brooklyn, 78*id., 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; *Rodbourne*v. *S. L. Grape and Wine Co.,*67 N. Y., 215.

We regret that the case was tried in a way which renders it 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 subcontractors, 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, Oh. J., and Allen, J., concur.