COURT OF APPEALS.

#### Abraham Dowdney, appellant, agt. George W. McCollom, respondent.

*December,*1874.

*Proceedings in foreclosure of mechanics' lien in the city of New York.*

The plaintiff made a contract with the defendant, by which he undertook to furnish all the building stone and brown sand necessary for the erection of fourteen houses upon the lots of the defendant, and to do certain filling specified in the contract, for the sum of $23,000, to be paid and accepted as follows: By conveying to him, or his assigns, by deed, &c., the second of said houses easterly from Fifth avenue, on the northerly side of Seventy-fourth street, describing the lot and the provisions of the deed by which, and the incumbrances subject to which, the same was to be conveyed, and $9,000 cash, to.be paid as specified in the contract.

*Held,*that it was the intention of the parties that the plaintiff was to have the lot, subject to the conditions, specified in the contract, and $9,000 cash, in consideration of performance of the contract on his part, and was not obliged to accept $23,000 cash for the whole, at the election of the defendant.

Also, that the plaintiff had the right to enforce the conveyance of this lot, and in case of the inability 'or refusal of the defendant to convey it as specified in the contract, to recover its value, although exceeding the sum of $14,000.

But this relief could not be given to the plaintiff in proceedings to foreclose the mechanic’s Fen; because such proceeding is entirely statutory, and the court can exercise no power except such as is conferred by the statute; that is, to determine the amount due the lienors, to order a sale of the property, distribute the proceeds, to give personal judgment, and to issue execution.

This proceeding was commenced in the New York common pleas to foreclose a mechanic’s lien, filed for $15,212.65, *343on property situate on Madison avenue, in that city, and was tried before David Me Adam, as sole referee, who- reported in favor of the plaintiff for $954.20, balance of the money installments under the contract; and as to the conveyance of the house under the provisions of the contract, the referee dismissed the plaintiff’s complaint, on the ground that such relief could not be awarded in a mechanics’ lien proceeding.

The plaintiff appealed from the decision of the referee to the general term of the common pleas.

The common pleas affirmed the judgment of the referee, and the plaintiff appealed to the court of appeals.

*Alex.*Thain, for appellant.

*Mr. Ashbel,*for respondent.

Grover, *J.*

— By the assignment of Williams to the deféndant of his contract with the plaintiff, and the undertaking of the former, upon a sufficient consideration, with Williams, to perform the same on his part, the defendant became liable to the plaintiff, the same as though h e had originally contracted with him instead of Williams. The plaintiff insists that upon performance by him he was entitled to be paid $23,000, $14,000 of which at the option of the defendant, might be paid by conveying to him a house and lot, as specified in the contract. But in case of the failure or neglect of the defendant to make the conveyance, he is entitled to be paid the whole sum in cash.

On the part of the defendant it is insisted that, upon performance of the contract by the plaintiff, he is entitled to the payment of $9,000 in cash, as provided by the contract, and to the conveyance of the house and lot as specified in the contract, and in case of the refusal of the defendant to convey, his only remedy is to enforce a specific performánee of this part of the contract, or a recovery of damages for the breach, which would be the value of the lot, at the time of the default *344of the defendant to convey, as required by the contract. The solution of this question must be determined by the construction of the .contract. By that the plaintiff undertook to furnish all the building stone and brown sand necessary for the erection of fourteen houses upon the lots of the defendant, and to do certain filling specified in the contract for the sum of $23,000, to be paid and accepted as follows : By conveying to him or his assigns by deed, &c., the second of said houses easterly from Fifth avenue on the northerly side of Seventy-fourth street, describing the lot and the provisions of the deed by which, and the incumbrances subject to which, the same was to be conveyed, and $9,000 cash to be paid as specified in the contract. As to the latter, no question is made by the parties. As to the former the question is, whether the defendant’s contract is simply to convey the house and lot as specified in the contract, or whether he is bound to pay the plaintiff $14,000 in cash in ease of his neglect or inability to convey as required. The plaintiff insists that the contract gives him no right to enforce the specific performance of a' conveyance of the lot. lie relies, upon the case of *Pinney*agt. *Gleason*(5 *Wend.,*.393), to sustain this position. It was there held, .that, upon a note by which the maker promised to pay $79.50 in salt, at .fourteen shillings per barrel, at a time specified, there could only be a recovery upon default of the maker of the sum therein specified. The case shows that this conclusion was based upon a construction of the contract, from which it was held, that the sum specified was the amount actually due from the maker to the payee, and that the provision for the payment otherwise than in cash was intended for the benefit of the debtor only, and consequently it was optional with him to make the payment in the manner provided, and that in case he failed so to do, he must pay the sum in money, and was not obliged to pay the actual value of the salt. Upon the construction put upon the contract the legal rule as to the obligation and rights of the parties was clearly right.

*345Numerous other cases, involving the same question, are cited by the counsel for the plaintiff, but they were all disposed of upon the principles applied in *Pinney*agt. *Gleason.*But they do not determine what is the true construction of the contract in the present case.

Upon a careful consideration of the language of the contract, I am satisfied that it was the intention of the parties that the plaintiff was to have the lot, subject to the conditions specified in the contract, and $9,000 cash in consideration of performance of the contract on his part. That the sum of $23,000, to be paid to him, was inserted not as the amount to be actually paid to him, but rather as fixing what was the supposed value of the interest in the lot to be conveyed, which the contract shows was assumed to be $14,000. The plaintiff has the right to enforce the conveyance of this lot, and in case of the inability or refusal of the defendant to convey it as specified in the contract, to recover ■ its value, although exceeding the sum of $14,000.

The "language of the contract shows that this was the intention of the parties, and the law requires that this intention should be carried into effect.

The counsel for the plaintiff insists that if this be so, such relief should have been given in this proceeding to foreclose the lien. An examination of chapter 500, page 850, of the Laws of 1863, under which the proceedings were had, will show that this could not be done. The proceeding is entirely statutory, and the court can exercise no power except such as is conferred by the statute.

That confers power only to determine the amount due the lienors, the priority of their respective liens, to order a sale of the property subject to the liens, and distribute the proceeds according to the rights of the parties, and to give a personal judgment in the proper cases against the parties liable to pay the amount found due, and issue execution against such parties for its collection. No power is given to decree the performance of any other act or process provided *346for the enforcement of any such decree. It is true that a lien may be filed and the same enforced where payment is to be made otherwise than in money *(Phillips on Mechanic’s Liens, sec.*129); but in such cases the court must determine the amount that is to be paid in money, and then proceed in the same manner as though such amount had been required to be so paid by the contract.

In the present case the defendant agreed to convey to the plaintiff a specified lot. But the plaintiff had made no demand of the deed, or shown any inability of the defendant to make the conveyance. The defendant was not, therefore, in default for not having made the conveyance *(Hudson*agt. *Swift,*20 *Johns.,*24; *Fuller*agt. *Hubbard,*6 *Cowen,*13; *Camp*agt. *Morse,*5 *Denio,*161. *See also Sugden on Vendors, 8th Am. ed.,*358). The plaintiff was not, therefore, entitled to a judgment for the value of the lot to be conveyed. It is no answer to this that the proceedings of the plaintiff to foreclose the Ben were hastened by the defendant, as provided by' the act. He should have taken care, before doing so, to be able to prove the inability of the defendant to convey or to put him in default by demanding a deed.

The rfeferee rightly dismissed the complaint in respect to the lot, leaving the plaintiff unembarrassed to pursue his remedy in respect thereto before the proper tribunal; and the judgment of the general term, affirming his judgment, must be affirmed with costs.

All concur.