O'Reilly v. Mahoney, 108 N.Y.S. 53

108 N.Y.S. 53 | N.Y. App. Div. | 1908

McLaughlin, J.:

Action to foreclose a mechanic’s lién. After the notice of lien had lieen filed the owner of the' real estate upon which it was sought to impress the same paid into court a sum of money sufficient to discharge the lien — there being that amount, at least, due the defendant, the general contractor. This action was subsequently brought by the assignee of the sub-contractor to recover the sum of $1,029.14, with interest from a specified -time, for extra work alleged to have been performed for, and materials furnished to, the general contractor. The plaintiff had a recovery of $562.51, with interest from April 1, 1905, from which the general contractor appeals.

We are satisfied with the correctness of the recovery, except in su far as it includes an allowance for the omission to build the bridge on Yan Dam street. In the contract which- the plaintiff’s assignor had with , the general contractor,, a bridge had to be built in front of the proposed building on Yan Dam street. After work had been begun under the contract, it was decided by the general con- . tractor that such bridge was unnecessary, and the. sub-contractor was directed not to and was prevented from building the same. . He testified that the charge for building such bridge Was $4 a foot, . and that the distance was 120 feet, making $480 .he would have received had he been permitted to perform his contract,, but that he was willing to deduct from the contract price $150, what it would have cost him for the construction of such bridge had the same been built. It appeared that the sub-contractor had actually expended, in carting materials to and from the premises and for' labor in constructing this bridge, about $70, and that the general contractor insisted that the difference between this amount and $480 should be deducted from the contract price — but he was willing to call it an even $40Q. The trial court allowed the sub-contractor $400 and deducted therefrom $150; in other words, there has been allowed to plaintiff’s assignor and included in the judgment the profit which the sub-contractor would have made had he been permitted to perform his contract in building the Van Dam street bridge. Loss of profits or damages for a breach of a contract cannot be recovered in an action to foreclose a mechanic’s lien. The lien is restricted by express provision of the statute^* to the “price and value ” of the labor performed and materials furnished. Any claim for damages for breach of a contract in refusing to allow a contractor to do the work is not within the provisions of the act and must be enforced in an ordinary action for damages against the contracting party. (Doll v. Coogan, 48 App. Div, 121; affd., 168 N. Y. 656.)

Hor do we think plaintiff was entitled to interest on the amount' recovered. The claim made by her Was unliquidated and subject to a reduction—if our conclusion be correct-—of upwards-of sixty per cent. Where a party claims upwards of sixty per cent more than lie is entitled to, and the claim is unliquidated, he is not entitled " to interest upon the amount recovered. (Excelsior Terra Cotta Co. v. Harde, 90 App. Div. 4; affd., 181 N. Y. 11.)

The judgment appealed from, therefore, must be modified by . striking therefrom the difference between the amount- as above, found due. the plaintiff and the amount which the trial court found, viz., $250, and also striking out the allowance for interest on the amount recovered, and as thus modified should be affirmed, with costs to appellant in this court:

Patterson, P. J., Houghton, Scott and Lambert, JJ., concurred.

Judgment modified as directed in opinion, and as modified affirmed, with costs to appellant. Settle order on notice.

* See Lien. Law (Laws of 1897, chap. 418), §§ 3, 9, subd. 4.— [Rep.