I concur in a reversal of the order on the ground that the complaint fairly construed alleges not a sale of property upon which there was a lien which the defendant agreed to pay as part of the purchase price, but rather an attempted sale of property according to the provisions of sections 116 and 117 of the Lien Law (Gen. Laws, chap. 49 [Laws of 1897, chap. 418], as amd. by Laws of 1900, chap. 762), with demand for payment of the deficiency. The sale not having been conducted in accordance with the provisions of these sections, the plaintiff cannot recover the balance. He not having complied with the law, his legal status is the same as though he had chosen to retake the property absolutely, and having so done, as shown by Mr. Justice Betts in his opinion, he has no further right of action.
Kellogg, J., concurred.
Order reversed, with ten dollars costs and disbursements, and motion for judgment granted, with costs, with leave to plaintiff to amend his complaint upon payment of the costs in this court and in the court below.
*900I
*901CASES REPORTED WITH BRIEF SYLLABI AND DECISIONS HANDED DOWN WITHOUT OPINION.