Adam Mink and Another, Respondents, v. Charles W. Heep and Another, Appellants

Adam Mink and Another, Respondents, v. Charles W. Heep and Another, Appellants. First Department, March 30, 1928. Liens — mechanic’s lien — foreclosure — plaintiffs not entitled to foreclosure since they did not perform contract. This is an action to foreclose a mechanic’s lien. Judgment in favor of the plaintiffs is reversed since it appears that they failed to perform their contract in that the foundation wall of the building which they erected was placed upon land not owned by the defendants, although the plaintiffs agreed to make a survey so as to properly locate the building. Furthermore, the wall was not built of stone as agreed, but of concrete. Appeal by the defendants from a judgment of the Supreme Court, entered in the office of the clerk of the county of Bronx on the 14th day of March, 1927, and also from an order entered on the 7th day of June, 1927. Alexander L. Strouse of counsel [H. H. Nordlinger and Samuel H. Hofstadter with him on the brief; Nordlinger & Riegelman, attorneys], for the appellants. No appearance for the respondents. [MAJORITY — Per Curiam.] Per Curiam. The action was brought to foreclose an alleged mechanics’ hen in connection with the erection of a foundation wall of a two-family house for which it is claimed the defendants contracted with the plaintiffs. There was no basis whatever for the judgment rendered against the defendants. The evidence very clearly demonstrated that the plaintiffs failed to perform their contract with the defendants in any respect. The wall which the plaintiffs claim to have erected was on property other than that owned by the defendants. The evidence fairly shows that plaintiffs themselves assumed to have a survey made and to properly locate the building, and when they built the wall they did not build it with building stone in accordance with the specifications in the contract, but built it of concrete. The error in locating the building upon property other than that of the defendants was clearly that of the plaintiffs. The plaintiffs should be held to their breach of their contract as to the material used in the erection of the foundation wall. The judgment and order appealed from should be reversed, with costs, and plaintiffs’ complaint dismissed, with costs, upon the ground that the judgment rendered was unauthorized, and that there was no basis for the rendition thereof; that it appears from the testimony at the trial that the plaintiffs have no cause of action against the defendants. Present — Dowling, P. J., Merrell, Finch, McAvot and Proskauer, JJ. Judgment and order reversed, with costs, and complaint dismissed, with costs. Settle order on notice.