Yann, J.
The statute applicable to the subject of this action is chapter 342 of the Laws of 1885, as it stood before it was amended by chapter 316 of the Laws of 1888. As we construe that statute and read the decisions made thereunder, as well as those made under similar statutes, we think that the following rules determine the extent to which a mechanics’ lien, filed by a sub-contractor or a material-man, attaches to the
locus in qyüo:
1. If anything is due to the contractor, pursuant to the terms of the contract, when the lien is filed, it attaches to that extent.
2. If nothing is due to the contractor according to the contract, when the lien is filed, but a certain amount subsequently becomes due thereunder, the lien attaches to the extent of that sum.
3. If nothing is due to the contractor pursuant to the contract, when the lien is filed and he abandons the undertaking without just cause, but the owner completes the building according to the contract and under a provision thereof permitting it, the lien attaches to the extent of the difference between the cost of completion and the amount unpaid when the lien was filed.
(Larkin
v. McMullin, 120 N. Y. 206;
Powers
v.
City of
Yonkers, 114 id. 145;
Mayor, etc.,
v.
Crawford,
111 id. 638;
Graf v. Cunningham,
109 id. 369;
Taylor
v.
Mayor etc.,
83 id. 625;
Heckmann
v.
Pinkney,
81 id. 211;
Gibson
v.
Lenane,
94 id. 183;
Rodbourn
v.
Seneca Lake Grape & Wine Co.,
67 id. 215;
Lombard
v.
Syracuse, B. & N. Y. R. R. Co.,
55 id. 491; 15 Am. & Eng. Encyc. 78, 84.)
The first question presented for decision is whether there was anything due from the owner to the contractor, according to the terms of the contract, when the lien was filed. This depends on whether there is any evidence to support the finding of the referee that the plastering had been substantially finished at the time of the filing of the lien, for according to the contract, the third payment of $800 was to become due when the work had progressed to that extent. Evidence was given in behalf of the owner tending to show that it was worth
$200 to complete the plastering, and that the mason who did it was paid that amount. The witnesses for the plaintiffs, however, testified that it was worth much less. As the conflict in the evidence raised a question of fact, the version most favorable to the plaintiffs and most strongly tending to sustain the finding of the referee must be accepted as that upon which he acted.
The only witnesses for the plaintiffs as to the quantity or Value of the unfinished plastering were the defendants Newman, who as sub-contractors with Smalle, were engaged in doing the mason work when the lien was filed, and they stopped work on that account. One of these gentlemen testified in substance that the cornice had not been run nor the last coat put on the main hall; that the stairs were not up,
“
so it was not plastered under the stairs; ” that he could not say that the plastering was all done in the second-story hall; that “ it was not finished, that is, it had not the last coat; ” and that it would cost from $20 to $25 to complete the plastering in the hall. The other sub-contractor testified that the last coat on the side walls of the parlor and the last coat in the entrance hall was not on and about forty feet of cornice work had not been run; that the stairs were not wholly up and not plastered; that the plastering was not done in the second-story hall,
“
and of course, the plastering was not on all the stairs; ” “I have said four times there was no plastering done under the stair-cases and in the hall; ” that it was worth about $30 to finish the plastering.
All of the witnesses for the defendant testified that there was more plastering to be done, and that it would cost more than the sub-contractors stated in their testimony.
Although the referee found that the sum of $200 was paid for completing the plastering, he refused to find that it was fairly and reasonably worth that amount. The learned General Term apparently held that the plastering was not finished, because they say in their opinion that “ as between
contractor
and owner, nothing was due under the contract.” The third payment of $800 was not simply for the plastering, but for the plastering and all other work that necessarily preceded it,
after the completion of the exterior, which made the second payment due. The cost of completing the stairs must be added to the cost of completing the plastering, for the latter could not be done until the former had been done. The question of substantial performance depends somewhat on the good faith of the contractor. If he has intended and tried to comply with the contract and has succeeded, except as to some slight things omitted by inadvertence, he will be allowed to recover the contract price, less the amount necessary to fully compensate the owner for the damages sustained by the omission.
(Woodward
v. Fuller, 80 N. Y. 312;
Nolan
v. Whitney, 81 id. 648;
Phillip
v.
Gallant,
62 id. 256, 264;
Glacius
v.
Black,
50 id. 145;
S. C.,
67 id. 563, 566;
Johnson
v.
DePeyster,
50 id. 666;
Sinclair
v.
Tallmadge,
35 Barb. 602.)
But when, as in this case, there is a willful refusal by the contractor to perform his contract and he wholly abandons it, and after due notice refuses to have anything more to do with it, his right to recover depends upon performance of his contract, without any omission so substantial in its character as to call for an allowance of damages if he had acted in good faith. While slight and insignificant imperfections or deviations may be overlooked on the principle of
de minimis non mrat lex,
the contract in other respects must be performed according to its terms. When the refusal to proceed is willful the difference between substantial and literal performance is bounded by the line of
de minimis. (Smith
v.
Brady,
17 N. Y. 173;
Cunningham
v.
Jones,
20 id. 486;
Bonesteel
v.
Mayor, etc.,
22 id. 162;
Walker
v.
Millard,
29 id. 375;
Glacius
v.
Black,
50 id. 145;
Catlin
v.
Tobies,
26 id. 217;
Husted
v.
Craig,
36 id. 221;
Flaherty
v.
Miner,
123 id. 382; Hare on Contracts, 569; Leake on Contracts, 821.)
In this sense the plastering was not substantially finished and there is no evidence to support the finding of the referee in that regard, for when three coats are required two will not suffice.' That is not substantially finished which requires a substantial sum to finish it.
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Yann, J.
The statute applicable to the subject of this action is chapter 342 of the Laws of 1885, as it stood before it was amended by chapter 316 of the Laws of 1888. As we construe that statute and read the decisions made thereunder, as well as those made under similar statutes, we think that the following rules determine the extent to which a mechanics’ lien, filed by a sub-contractor or a material-man, attaches to the
locus in qyüo:
1. If anything is due to the contractor, pursuant to the terms of the contract, when the lien is filed, it attaches to that extent.
2. If nothing is due to the contractor according to the contract, when the lien is filed, but a certain amount subsequently becomes due thereunder, the lien attaches to the extent of that sum.
3. If nothing is due to the contractor pursuant to the contract, when the lien is filed and he abandons the undertaking without just cause, but the owner completes the building according to the contract and under a provision thereof permitting it, the lien attaches to the extent of the difference between the cost of completion and the amount unpaid when the lien was filed.
(Larkin
v. McMullin, 120 N. Y. 206;
Powers
v.
City of
Yonkers, 114 id. 145;
Mayor, etc.,
v.
Crawford,
111 id. 638;
Graf v. Cunningham,
109 id. 369;
Taylor
v.
Mayor etc.,
83 id. 625;
Heckmann
v.
Pinkney,
81 id. 211;
Gibson
v.
Lenane,
94 id. 183;
Rodbourn
v.
Seneca Lake Grape & Wine Co.,
67 id. 215;
Lombard
v.
Syracuse, B. & N. Y. R. R. Co.,
55 id. 491; 15 Am. & Eng. Encyc. 78, 84.)
The first question presented for decision is whether there was anything due from the owner to the contractor, according to the terms of the contract, when the lien was filed. This depends on whether there is any evidence to support the finding of the referee that the plastering had been substantially finished at the time of the filing of the lien, for according to the contract, the third payment of $800 was to become due when the work had progressed to that extent. Evidence was given in behalf of the owner tending to show that it was worth
$200 to complete the plastering, and that the mason who did it was paid that amount. The witnesses for the plaintiffs, however, testified that it was worth much less. As the conflict in the evidence raised a question of fact, the version most favorable to the plaintiffs and most strongly tending to sustain the finding of the referee must be accepted as that upon which he acted.
The only witnesses for the plaintiffs as to the quantity or Value of the unfinished plastering were the defendants Newman, who as sub-contractors with Smalle, were engaged in doing the mason work when the lien was filed, and they stopped work on that account. One of these gentlemen testified in substance that the cornice had not been run nor the last coat put on the main hall; that the stairs were not up,
“
so it was not plastered under the stairs; ” that he could not say that the plastering was all done in the second-story hall; that “ it was not finished, that is, it had not the last coat; ” and that it would cost from $20 to $25 to complete the plastering in the hall. The other sub-contractor testified that the last coat on the side walls of the parlor and the last coat in the entrance hall was not on and about forty feet of cornice work had not been run; that the stairs were not wholly up and not plastered; that the plastering was not done in the second-story hall,
“
and of course, the plastering was not on all the stairs; ” “I have said four times there was no plastering done under the stair-cases and in the hall; ” that it was worth about $30 to finish the plastering.
All of the witnesses for the defendant testified that there was more plastering to be done, and that it would cost more than the sub-contractors stated in their testimony.
Although the referee found that the sum of $200 was paid for completing the plastering, he refused to find that it was fairly and reasonably worth that amount. The learned General Term apparently held that the plastering was not finished, because they say in their opinion that “ as between
contractor
and owner, nothing was due under the contract.” The third payment of $800 was not simply for the plastering, but for the plastering and all other work that necessarily preceded it,
after the completion of the exterior, which made the second payment due. The cost of completing the stairs must be added to the cost of completing the plastering, for the latter could not be done until the former had been done. The question of substantial performance depends somewhat on the good faith of the contractor. If he has intended and tried to comply with the contract and has succeeded, except as to some slight things omitted by inadvertence, he will be allowed to recover the contract price, less the amount necessary to fully compensate the owner for the damages sustained by the omission.
(Woodward
v. Fuller, 80 N. Y. 312;
Nolan
v. Whitney, 81 id. 648;
Phillip
v.
Gallant,
62 id. 256, 264;
Glacius
v.
Black,
50 id. 145;
S. C.,
67 id. 563, 566;
Johnson
v.
DePeyster,
50 id. 666;
Sinclair
v.
Tallmadge,
35 Barb. 602.)
But when, as in this case, there is a willful refusal by the contractor to perform his contract and he wholly abandons it, and after due notice refuses to have anything more to do with it, his right to recover depends upon performance of his contract, without any omission so substantial in its character as to call for an allowance of damages if he had acted in good faith. While slight and insignificant imperfections or deviations may be overlooked on the principle of
de minimis non mrat lex,
the contract in other respects must be performed according to its terms. When the refusal to proceed is willful the difference between substantial and literal performance is bounded by the line of
de minimis. (Smith
v.
Brady,
17 N. Y. 173;
Cunningham
v.
Jones,
20 id. 486;
Bonesteel
v.
Mayor, etc.,
22 id. 162;
Walker
v.
Millard,
29 id. 375;
Glacius
v.
Black,
50 id. 145;
Catlin
v.
Tobies,
26 id. 217;
Husted
v.
Craig,
36 id. 221;
Flaherty
v.
Miner,
123 id. 382; Hare on Contracts, 569; Leake on Contracts, 821.)
In this sense the plastering was not substantially finished and there is no evidence to support the finding of the referee in that regard, for when three coats are required two will not suffice.' That is not substantially finished which requires a substantial sum to finish it. The referee found that the contractor wholly abandoned work upon said building and left it
incomplete and exposed
to the
elements, and that he refused, after due notice from the owner to perform his contract, to go on with the work or finish the building. The abandonment was willful and the omission to perform intentional, and under those circumstances, according to the authorities, substantial performance is not sufficient, except when it is understood as excluding only such unsubstantial differences as the parties are presumed not to have had in contemplation when they made the contract.
The plaintiffs claim through the contractor, and if the third payment was not due as to him it was not due as to them. They are under the same obligation to prove performance and to the same extent that he would be. Their rights as lienors are measured by his rights under the contract. We think that there was nothing due upon the contract when the lien was filed, and that the judgment cannot be supported on that ground.
The owner, however, although under no obligation to do so, completed the building herself, according to the contract, which thus continued operative through her action. After the contractor refused to proceed she performed the contract for him, as it expressly permitted her to do. As her action was according to the contract, it will be presumed, under all the circumstances and in support of the judgment, that it was under the contract. While she threatened to cancel it, - there is neither finding, nor request to find, that she did cancel it, and instead of pleading a cancellation or rescission in her answer, she asked to have the amount expended by her to complete the building “ allowed as a set-off or counter-claim to any claim of the said defendant Smalle or the plaintiffs herein, or of any of the other defendants herein, in case the court should eventually determine that the said defendant Smalle is entitled to any sum whatsoever under the said contract.” Upon the trial her counsel said: “We claim that we completed this building after the contractor had abandoned his work and have a right to set off what we paid for the completion of this building. That is claimed as a set-off against this claim and
as a counter-claim.” She testified that after Smalle stopped work she had a conversation with one McDowell about taking the contract to complete the house; that McDowell’s firm made a written proposition
“
to finish the incomplete work; ” that when Mr. McDowell handed her this paper she had a talk with him
“
in regard to his taking up the contract to complete the house,” and that subsecpiently she accepted said proposition to complete the house in accordance with the plans and specifications and paid the new contractors accordingly. The amount paid by her for this purpose, in legal effect, was paid for the original contractor. The difference between the sum thus expended and the aggregate amount unpaid on the contract with Smalle upon the completion of the entire work, became due under the contract.
(Graf v. Cunningham, supra.)
To the extent of that sum, being the difference between $2,023 and $1,905.20, the lien of the plaintiffs attached, and they are entitled to a foreclosure for that amount, provided the County Court had jurisdiction of the action.
As the action was brought to foreclose a lien for the sum of $1,670.10, the appellant claims that the County Court had no jurisdiction. (L. 1885, ch. 342, § 7.) The respondents defend the jurisdiction of the court under chapter 480 of the Laws of 1880. They insist that, although that act purported to amend an act that had already been repealed, it has the effect of an original enactment. (L. 1870, ch. 467; L. 1877, ch. 417; L. 1880, ch. 245; L. 1880, ch. 480.) They further insist that the legislature has express constitutional power to thus increase the jurisdiction of the County Courts. (Cons. St. of N. Y. art. 6, § 15;
Sweet
v.
Flannagan,
61 How. Pr. 327.)
While we have considered, we do not decide this question, as the jurisdiction of the court, to the extent that it was exercised, can be justified on another ground..
A civil action is commenced by the service of a summons, ■ which, under the present practice, is of the same form in all cases. (Code C. P. §§ 416, 418.) As there was nothing in the summons to show what the action was brought for, the court acquired jurisdiction when it was served, and hence had
power to amend the complaint, if it demanded judgment for too large an amount.
In
McIntyre
v.
Carriere
(17 Hun, 64), the summons was in the old form of a summons for money, and showed upon its face that the amount claimed exceeded the jurisdiction of the court. It was held that, as the summons itself showed a want of jurisdiction, the court had no power to amend. But in
McDonald,
v.
Truesdail
(Id. 65), the summons was for relief, under the former practice, and it was held that the court acquired jurisdiction by the service of a summons, free from objections, and had power to amend the complaint by reducing the demand for judgment to one thousand dollars.
In
Gilbert
v.
York
(41 Hun, 594), the complaint failed to allege the residence of the parties, and it was held demurrable for that reason, but the General Term allowed an amendment upon terms. See also
Dwyer
v.
Rathbone
(17 N. Y. St. Rep. 443), and
Yagor
v.
Hannah
(6 Hill, 631, 634).
The judgment should be reversed and a new trial granted, with costs to abide the event, unless the plaintiffs, within thirty days, stipulate to reduce the amount due and unpaid upon their lien to the sum of $117.80, with interest thereon from September 17, 1886, in which event the judgment as thus modified should be affirmed, without costs in this court to either party.