#### Morris Zack, Respondent, v. Emil Gans and Louis Gardner, Appellants.

(Supreme Court, Appellate Term,

January, 1912)

Contracts — Substantial performance — What constitutes substantial performance.

Mechanics’ liens — Validity of mechanics’ liens — Contracts.

Where a building contract provides that substantial performance will be sufficient if satisfactory to departments and arehitects, performance according to amended plans of the architect satisfies the contract.

Where the contract provides for the retention by the owner of moneys to secure him against liens or claims, the court cannot in an action for the contract price try out the question of the validity of a lien as against the contractor, where the lienor is not a party to the action and disregarded the lien, and award judgment to the contractor without deduction therefor.

Appeal by the defendants from a judgment of the Municipal Court of the city of ISTew York, borough of Manhattan, eighth district, entered, upon "a verdict rendered in favor of the plaintiffs.

Jacob I. Berman, for appellants.

Isaac S. Heller (M. E. Kelley and C. S. Lorentzen, of counsel), for respondent. '

Lehmait, J..

The plaintiff agreed to perform certain work for the defendants according to plans and specifications. The *118contract contained a clause that “ substantial performance ” shall'be satisfactory to the owners if satisfactory to “departments and architects.” It was shown that, when this contract was made, the defendants stated that they would be satisfied to have the plans amended in certain particulars if the tenement house department approved. The architect secured the approval of the tenement house department to an amended plan, and the plaintiff substantially performed the contract-according to the amended plans. This testimony did not vary the written' contract, but simply showed the authority of the architect to amend the plans and thereby to waive strict performance. A violation was subsequently filed against these premises by the building department, but it was shown that this violation was filed because the defendants and their architect had failed- to amend the'plans on file in the building department after the amendment was permitted by the tenement house department. The violation was not filed because of a defect in the plaintiff’s work, but because of the neglect of the defendants and their agent.

The contract also provided that, if at the. time when any payment becomes due there shall be any lien or claim chargeable to said contractor for which the owner may at any time be made liable, the owner -shall have the right to retain and hold a sum to furnish complete -security against said lien or.claim, until it has been conclusively and finally discharged, satisfied and canceled. The evidence shows that a mechanic’s lien for the sum of fifty-two dollars has -been- filed against the plaintiff as contractor and the -defendants as owners. The lienor testified that this lien was for services rendered under a contract with plaintiff and not under . another contract which he had directly with the defendants-. Nevertheless the trial justice struck all testimony as to the lien from the record. Possibly this.lien may, after a trial, be held not chargeable' against the plaintiff; but that issue could not be decided in an action to which the lienor was not a party. The defendants had the right to stand upon their contract and to protect themselves against any claim against plaintiff for which they might be made liable.

The judgment must, therefore, be reversed and a new trial *119ordered, with 'costst to appellant to' abide the event,, unless the plaintiff consents to a'reduction of the judgment by the sum of fifty-two dollars and interest from the date of the filing of the lien, without prejudice to his right to bring a new action for the sum retained. If the plaintiff consents t<i such reduction, the judgment should be modified accordingly and, as modified, affirmed, without costs of this appeal;

Seabury and Page, JJ., concur.

Judgment modified and, as modified, affirmed without costs of this appeal. ,