Petitioner appeals from three orders which denied, initially and upon reargument, its application for an order summarily discharging a notice of lien (Lien Law, § 19, subd. [6]) on the ground that it appears from the face of the notice that by reason of the character of the labor furnished, no valid lien exists.
The lienor contracted to furnish engineering services in connection with the construction of a cement mill, for which the lienor was to be paid at specified rates, and petitioner agreed to pay an additional fee of $400,000 in the event the completed plant should be shown capable of a stipulated rate of production, which the lienor asserts has been demonstrated.
A notice of lien is required to state, among other things, the “ labor performed * * * and the agreed price or value thereof” (Lien Law, § 9, subd. 4) and in this case the notice specifies that the ‘ ‘ agreed price and value of the labor performed is cost plus $400,000 ”. Appellant, in its argument, is in large part preoccupied with the contention that Special Term, in considering whether the character of the labor was such as to support a valid lien, did not, and was of opinion that it could not, look beyond the face of the notice and determine the case
The notice is proper in form (see Fyfe v. Sound Development Co., 235 N. Y. 266, 271, where the lien was for “ cost plus ten per cent”); but appellant contends that, in this case, the “cost” has been paid and the “plus” of $400,000 is for a “bonus” and does not represent the cost or value of labor. The statute refers to ‘ ‘ agreed price or value ’ ’. That the value of services to be liened may be enhanced, in fact, or a base price for their rendition increased by agreement, in proportion to the degree of their success in accomplishing a particular result, seems a not unreasonable theory, but one that Ave need not pass upon in determining this appeal. Appellant’s contrary position has not been established as a matter of law and its evidentiary contentions are disputed as matters of fact. The cases upon which appellant relies (Goldberger-Raabin, Inc. v. 74 Second Ave. Corp., 252 N. Y. 336; Midtown Contr. Co. v. Goldsticker, 165 App. Div. 264; O’Reilly v. Mahoney, 123 App. Div. 275) stand merely for the proposition that anticipated profits under uncompleted contracts or damages for prevention of performance are not lienable, the lien being available only for past performance; and hence the
The orders should be affirmed, with $75 costs.
Herlihy, Reynolds, Aulisi and Hamm, JJ., concur.
Orders affirmed, with $75 costs.