#### Weisman v. City of Buffalo.

*(Supreme Court, General Term, Fifth Department.*

June 20, 1890.)

L Mechanics’ Liens—Rights oe Laborers.

By the terms of a contract to do work for defendant, the latter was entitled to retain 20 per cent, of the contract price for 90 days after the completion of the work. The contractor abandoned the work after being paid more than 80 per cent, of the value of the work already done. Plaintiff, an employe of the contractor, then filed his lien for work done. Thereafter the contractor’s sureties, by agreement with defendant, completed the work for the balance of the contract price not already paid to the contractor. This was paid to them on the completion of the work, the value of which was more than the compensation paid. *Meld,*that it was a mere right, and not a duty, for defendant to retain the 20 per cent. 90 days, and that, the contractor having received all he was entitled to, plaintiff had no remedy against defendant.

8. Same.

The question whether the contractor had agreed with his sureties fo complete the work for the balance of the contract price, over and above what defendant had retained from the work done by the contractor, was immaterial; there being no pretense that defendant knew of it, and it being undisputed that the price paid the sureties was not more that the work done by them.

Appeal from Erie county court.

Action by Anton Weisman against the city of Buffalo. From a judgment for defendant entered on the verdict of a jury directed by the court, plaintiff appeals.

Argued before Dwight, P. J., and Macomber and Corlett, JJ.

*Giles IS. Stillwell,*for appellant. *Frank C. Laughlin,*for respondent.

Dwight, P. J.

The plaintiff and his assignor of a portion of the claim sued upon were workmen in the employ of one Winter on a contract of the latter to do the work of a local improvement in the city of Buffalo. By the terms of the contract the defendant was entitled to retain 20 per centum of *570the contract price until three months after the completion of the work. On the 7th of June, 1888, the contractor, having done work to the amount of @1,275, and having been paid thereon the sum of @1,120, abandoned the work, leaving in the hands of the defendant the sum of @155, or less than 20 per eentnm of the value of the work done. On the 25th day of June the plaintiff and his assignor filed mechanics’ liens, under the provisions of chapter 315 of the Laws of 1878, for the amount of their claims for work done before June 7th. Thereafter the defendant notified the sureties of the contractor to complete the work, and they did so under an agreement with the defendant that they should receive for the work required to be done by them the balance of the contract price not already paid to Winter; and upon their completion of the work, August 1, 1887, that balance was paid to them. The value of the work done by the sureties was more than the compensation so paid. The contention on the part of the plaintiff is that the liens of himself and his assignor, though filed after the abandonment of the work by their employer, Winter, and after payment to him of more than the full amount which he was entitled to receive up to that time, attached to the balance of $155, retained under the contract; that the payment of the entire balance of the fund on the 1st of August to the parties completing the work, while it defeated the liens, excused the lienors from bringing an action to foreclose within the 90 days limited by the statute, or at any time thereafter, and that the defendant is liable for its wrongful act in paying out the balance of the fund; and we understand counsel to contend that the act was wrongful for two reasons: (1) Because it defeated the provisions of the statute which give the lienors 90 days after filing their liens in which to commence an action to foreclose them; and (2) because it was in direct violation of the defendant’s contract to retain 20 per centum of the money earned for three months after the completion of the work. Neither of these positions is at all tenable. The provision of the contract referred to was'not for the benefit of the contractor, still less for that of his employes, but for the benefit of the city, as security on the part of the contractor that the work done should remain or be kept in repair for the period named after its completion. It was a condition which the city might waive at its pleasure, and under which no other party could claim any rights.

The other ground of contention is equally unavailing. The lienors had no lien on any portion of the balance of the contract price, because no part of it ever became due to the contractor. By abandoning the work before its completion the contractor forfeited all right to the balance retained by the city. That balance was not to become due to the contractor until three months after the completion of the work under the contract with him. The contract with his sureties was a new contract, and could not inure to his benefit, nor to that of his lienors. *Haswell*v. *Goodchild,*12 Wend. 373; *Hagan*v. *Society,*14 Daly, 131, and the cases cited.

The question of fact whether Winter had agreed with his sureties to complete the work for $200, the balance of the contract price over and above the amount retained by the city on the work done by the former, was immaterial. There was no pretense that the city or its officers had any notice of such an agreement, if it was made; and the evidence is undisputed that they contracted with the sureties in good faith, and that the price paid to them was not more than the actual value of the work done by them. The judgment of the county court was right, and must be affirmed. Judgment of the county court affirmed, with costs. All concur.