10 N.Y.S. 569 | N.Y. Sup. Ct. | 1890
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
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.