The defendant agreed with one Wilson to pay him $3,500 for building a house, the payments to be made in installments as certain stages in the process of building were reached. She paid Wilson $1,500 during the progress of the building, and the court finds that upon the date named in its finding $400 more were due him under the contract. She refused to pay that amount and claimed the work was not advanced far enough and was not done in accordance with the contract. The court found against her on these points and there is evidence to sustain the finding. The contractor, upon defendant's refusal to pay, neglected to go on with the work, when she served a notice upon him stating that as he had announced he had abandoned the work, and as he had stopped *Page 372 work she thereby required him to proceed with the execution thereof within two days, and if he failed so to do she should consider that he had abandoned the work, and she would proceed herself to finish the erection of the building and hold him for the damages. Wilson did not proceed and she went on and finished the building at an expense of $1,430, which, with the $1,500 already paid, left a balance of $570 of the original contract-price. The plaintiffs and some of the defendants are sub-contractors, and filed liens and have recovered judgments for the payment to them of their liens out of the above $570, to the extent to which it will go. Four hundred dollars were due Wilson when he demanded it for work which he had already done, and the owner's refusal to pay was wrongful. This is the finding of the court. There can be no question but that such sum should be paid the lienors in this proceeding, as a payment pro tanto for the work done by them on the building, and which the plaintiff has the benefit of, because that sum at least was due Wilson at the time he demanded it, and which the owner has never paid.
More difficulty exists in relation to the $170. But we think, upon the whole, it should also be allowed the lienors, and such allowance simply makes the owner liable for the contract-price of the building which she agreed to pay Wilson. We think the defendant, in effect, went on under her notice above mentioned and completed the building at the expense of the contractor Wilson, and he, by his silence, must be held to have acquiesced in such action. She could claim no forfeiture of the contract because he did not go on after her notice, for the reason that she was herself in the wrong, and had no right to insist upon his continuing work while she refused to pay the $400, which were due the contractor at the very time when she gave this notice. Rather than pay that sum when it was due she preferred to try and make the contractor go on with the work without it, and when she notifies him of the consequences of his refusal, that she will go on and complete the building and hold him for damages, it is but another way *Page 373 of saying that she will complete it at his expense, in which he acquiesces. She does complete it, and for $170 less than it would have cost had she paid Wilson the $400 when due him, and he had gone on and completed it. She could not put the contractor in default for his neglect or refusal to proceed and complete the building, because she was herself in default in refusing to pay him the $400 when due. Under all the circumstances, we think it is fair to treat her as if the contractor had consented to her going on and completing the building at his expense up to the amount of the contract-price.
This would bring the case within Wheeler v. Scofield (67 N.Y. 311). She could not obtain the right to go on and complete the building outside of the contract, and treat it as abandoned by the mere service of her notice, unless she had the right to so treat it by the refusal of Wilson to go on until he was paid the $400. As there was no right to so treat him, her notice to that effect was to that extent useless, and his acquiescence can be referred to an acquiescence on his part to the completion at his expense, which, under the circumstances, we hold the notice amounted to.
As to the objection to the notice of lien of Self, that it was not verified, we do not think it tenable. Under the act of 1862, which applied to Kings county, it was not required. That act was not repealed by the passage of the act of 1880 (Chap. 486), which applied to the cities of the state generally. (See McKenna v.Edmundstone, 91 N.Y. 231.)
We have examined the other questions arising upon the exceptions to the rejection of evidence, and do not think them tenable.
The judgment should be affirmed, with costs.
All concur.
Judgment affirmed. *Page 374