(dissenting):
The plaintiff is a subcontractor who performed work in excavating for a building to be erected upon the defendant’s premises in the city of New York.
It was shown that there was a balance due to the plaintiff’s contractor at the time of the filing of the lien of $3,536.30 and the amount of work done by the plaintiff was $3,939.80, for which payment has not been made. The learned justice at the trial, however, dismissed the complaint, upon the ground that *107the notice of lien was not filed within ninety days after the performance of the last items of work under the contract, pursuant to section 10 of the Lien Law (Consol. Laws, chap. 33; Laws of 1909, chap. 38).* It appears that the notice of lien was filed on the 4th day of April, 1914, and the plaintiff claimed that the last item of work performed under the contract was done on the 7th day of January, 1914, or eighty-eight days prior to the filing of the notice of lien. The evidence shows that the contract was substantially completed during the summer of 1913, but that thereafter the defendant’s agent repeatedly wrote to the plaintiff demanding that the rubbish be removed and the sidewalk repaired, and made the doing of this work a condition precedent to making the final payment. The testimony of George Colon, president of the plaintiff, and of Joseph Hess, an employee of the plaintiff, that the work of removing the rubbish and repairing the sidewalk was completed on January 7, 1914, is uncontradicted. It is evident from the correspondence between the defendant’s agent and the plaintiff that the defendant claimed that this work was within plaintiff’s contract, and that plaintiff eventually accepted this construction of the contract and performed the work. The learned justice who decided the case held that the removal of the stones from the adjoining premises was not work done upon the premises and cannot be considered as work done under the contract. He also finds that there was no proof of any work performed on the sidewalk within the period of ninety days before the lien was filed, and states that the sidewalk had been accepted by the owner as satisfactory on November 8, 1913, when she returned the sum deposited with her as indemnity to insure against improper relaying of the sidewalk. In so finding he must have overlooked the testimony shown above, both as to the removal of stones from the cellar around the seventh of January and the fixing of the sidewalk, which is uncontradicted. Though this work was unsubstantial in its nature and undoubtedly from the evidence it appears that the contract had been substantially performed several months before January, 1914, and had been accepted by the defendant, the authorities show *108that the statutory limitation as to the time of filing a lien does not date from the time of substantial performance of the contract or from the time of acceptance of the work, but dates from the time when the last minute item of work upon the contract was performed. (Milliken Bros., Inc., v. City of New York, 201 N. Y. 65; Chambers v. Vassar’s Sons & Co., Inc., 81 Misc. Rep. 562.) As pointed out in these cases a contractor cannot of his own volition perform some minute detail of work or deliver material to the premises after the completion of the contract, for the purpose of renewing his right to file a lien; but where, at the request of the person against whom the lien is claimed, additional work or materials are furnished upon the premises in good faith, the time for the filing of the lien is ninety days from the date of such performance.
In the case at bar the removal of the stones from the cellar and the fixing of the sidewalk are shown to have been done in answer to the defendant’s demands, and in my opinion the notice of lien was sufficient if filed within ninety days of January 7,1914. A sidewalk has been held to be an appurtenance of the premises within the meaning of the Lien Law, and work done upon it is, in contemplation of law, work done upon the premises. (Kenney v. Apgar, 93 N. Y. 539.)
The judgment should be reversed and judgment granted for the plaintiff, with costs.
Smith, J., concurred.
Judgment affirmed, with costs.
Since amd. by Laws of 1916, chap. 507. —[Rep.