Bruno Bauer and Max Obrist, Partners, Doing Business under the Firm Name of B. Bauer & Co., Respondents, v. Harris Cohen and Joseph Schwartzberg, Partners, Doing Business under the Firm Name of Cohen of Schwartzberg, Appellants

Bruno Bauer and Max Obrist, Partners, Doing Business under the Firm Name of B. Bauer & Co., Respondents, v. Harris Cohen and Joseph Schwartzberg, Partners, Doing Business under the Firm Name of Cohen & Schwartzberg, Appellants. Second Department, June 5, 1908. Artisan’s lien — payment due on delivery—-replevin. ° Where an. artisan receives goods and performs work on the same under a con- ’ tract entitling Mm to a percentage of the agreed price on each parcel returned as the. work progressed, the balance of the price to'be paid when installments' returned are found ,to be satisfactory, he is' entitled to an artisan’s lien on goods remaining in Ms hands for the price of .portions delivered, even though,he refuses to continué the work by reason of the owner’s failure to' pay for the worktalfeady done.' ' x Such.fieri ináy he set up as a defense to the owner’s action.of replevin. Appeal by the defendants, Harris Cohen and another, partners, etc., from a judgment of the Municipal Court of the city' of Hew; York, in favor of the' plaintiffs, entered' after a trial before the court without a jury. . Jerome A. Strauss, for the appellants. Theodore F. Kuper, for the respondents. [MAJORITY — Gaynor, J. :] Gaynor, J. : The plaintiffs delivered to the defendants 1,300 yards of lawn to be embroidered by them at an agreed price per stitch-,.and returned to the plaintiffs in installments as the work progressed, the plaintiffs,to pay 50 per cent, of the agreed price on each delivery to them, and the remaining 50 per cent, when they should have examined the work and found it satisfactory A ' Two deliveries were made by the defendants, but the plaintiffs-failed to pay them.therefor,,, whereupon the defendants refused to continue their work and tendered back the remainder of the lawn on condition that payment be made for the work already done. ' The defendants did not pay;. and brought this action to recover possession .of -the goods; The defendants pleaded an artisan’s lien as a defence. This was; a good defence to the extent of the amount due and payable, to them on the delivery of the material which they had finished, at all events, and the judgment for the plaintiffs was erroneous. An artisan’s lien is lost where the material or object on which the work is to be done is by the contract to be delivered before payment and credit given (Morgan v. Congdon, 4 N. Y. 552; Blumenberg Press v. Mutual Mer. Agency, 177 id. 362). But that is not this case in respect of the 50 per cent, to be paid on delivery. It is the contract which determines ; and mere delivery of a part without payment does not affect the lien on the goods still in hand where the contract was for payment on delivery (cases supra). The judgment should be reversed. Woodward, Jenks, Rich and Miller", JJ., concurred. Judgment of the Municipal Court reversed and new trial ordered, costs to abide the event.