This action is one to foreclose a mechanic’s lien. Before the plaintiffs are entitled to succeed in the action they must show substantial compliance with the. contract. (Glacius v. Black, 50 N. Y. *18145.) An examination of the record, as I view it, shows that the court was justified in finding that the contract was in no sense performed. The testimony tended to establish that the heating apparatus was not sufficient, and did not answer the terms of the contract. Indeed, the testimony of Smith tended to establish that no contract was made with the defendant, of any character,, but that he made the contract and became responsible for its fulfillment, in consequence of which no debt existed in favor of the plaintiffs. The referee, however, seems to have disregarded this testimony and rendered his decision based upon the theory that the contract was not performed. It is not contended by the plaintiffs that they performed the contract which the testimony of Smith and Mrs: Creed tended to establish was made. The plaintiffs’ view is that they made no such contract, but that they had .complied with the arrangement which they did make. The referee found that the plaintiffs failed in the fulfillment of their, contract, and I can see no view on which his conclusions can be disturbed as being against the weight of the testimony. The only basis which could authorize the maintenance of this action is found in the rise of the article by the defendant. But upon this subject it appears that the apparatus was put in the house in December, 1895, and the lien was filed on the 12th day of March, 1896. There is evidence tending to establish that during this period the defendant complained that the contract had not been fulfilled, and while complaint was not made by the defendant to the plaintiffs, it was made to Smith, who made the arrangement.with the plaintiffs, and the plaintiffs agreed to remedy the defects. They never did, but brought this action to foreclose the lien about the 31st day of July, 1896. ' .
It seems to be conceded that if the defendant had notified the plaintiffs to remove the apparatus from the house she could.not be charged with liability based on the ground that it had been accepted. I do not think this can change the result; first, for the reason that no such point was made upon the trial; and, second, the contract is entire, with no obligation to pay resting upon the defendant until the completion of it. The apparatus was so attached to the building as to become a part of the structure. Under such circumstances, there having been a substantial failure to perform, the plaintiffs were not entitled to recover, even though to some extent the defend*19ant enjoyed whatever benefit was to be' derived from the use of the apparatus. Indeed, at the most, whether the defect was waived was a question of fact, and the referee must be deemed to have found that there was no waiver. (Smith v. Brady, 17 N. Y. 173.) This case is authority unshaken for this proposition. (Made v. Snell, 140 N. Y. 193, 198; Anderson v. Petereit, 86 Hun, 600.)
If the plaintiffs had relied upon their claim of acceptance to sustain their action they should have urged it upon the attention of the referee at the trial; but they planted themselves squarely upon the ground that they had performed their contract and were entitled to recover for that reason. Such was the theory of the trial, and such was the determination against them upon this issue by the referee.
I do not see, therefore, upon what legal ground .this judgment can be reversed.
Cullen, J., concurred.
Judgment reversed and a new trial granted before a new referee to be appointed at Special Term, costs to flbide the event.