Two grounds are relied upon to reverse the judgment, of which the first is that the lien was fraudulent in exaggerating the amount due. The answer to this is that it was neither intentionally false nor in fact misleading. When it is read as a whole, the statement of the amount cannot at best be construed into anything more than a mistake in the method of formulating the claim, because, although the notice first recites that the plaintiff has a lien of $9,150, which was the entire contract price less what had been paid, thereafter it . states that there remained to be done by the plaintiff under the contract about $6,500 of work, which sum, if deducted, shows-that the amount the plaintiff actually claimed and which in this manner appeared from the face of the lien was but $2,500. That-this- is the true construction to be taken of the wording of the lien,, and that the defendants were in no way injured thereby, appears-from the fact that the bond given to release it was in the sum of but $3,000, which included in addition to the claim of $2,500, sufficient to cover interest and costs.
The appellant’s second contention is that-the judgment cannot; stand because the action was brought upon quantum meruit and no. evidence was given upon the trial as to the actual value of the labor and materials furnished by the plaintiff, the only proof offered being the amount fixed by the contract as payable in the first installments for such work. To this claim there are two sufficient answers.. One is that the question was not raised at Special Term, and the-other that even if such objection had been made it Would not have-been available for the reason that it rests upon a false premise, the appellant being in error in asserting that the action was framed upon the theory of a quantum, meruit. What the plaintiff alleged in his-complaint and what was proved upon the trial was that he was entitled to receive according to the terms of the contract certain payments or installments, and that up to the point that he was permitted to do the work, and when he was stopped on account of -the insolvency and inability of the builder to continue, there was due to him under the contract the payment or sum to recover which the *217suit was instituted. In this respect, therefore, the case is clearly distinguishable from Wyckoff v. Taylor (13 App. Div. 240).
The judgment accordingly should be affirmed, with costs.
Patterson, McLaughlin and Laughlin, JJ., concurred; Van Brunt, P. J., dissented.