James Williams, Respondent, v. Edward Freel et al., Appellants

James Williams, Respondent, v. Edward Freel et al., Appellants. (Submitted June 11, 1885; decided June 26, 1885.) The mem. of opinion herein, which is given in full, states the nature of the action and the material facts. “ The defendants, Freel & McNamee, had a contract for the performance of certain work for the city of New York, and the plaintiff furnished certain stone to them to be used in the performance of their contract. Not having been paid for all the stone so furnished, the plaintiff gave notice to the cotíiptroller of the city and the commissioner of public works of a lien upon the balance due the contractors from the city, under chapter 315 of the Laws of 1878, and this action was subsequently commenced to enforce such lien. No question is made upon this appeal that the plaintiff’s proceedings have been regular under the act mentioned, and but one objection is made to the recovery. In the notice of lien, it is alleged that the stone were delivered to Freel & - McNamee on and between the 11th day of June and the 6th day of November, 1879 ; and so also it is alleged in the complaint, and the claim of the appellants is, that the stone was actually furnished after November, 1879, and in the year 1880, and that, therefore, the plaintiff has recovered upon a cause of action not alleged in his notice of lien or in his complaint. But the facts are that the plaintiff delivered stone between the dates mentioned, which was used and accepted between those dates and paid for by the contractorp; that they also delivered between those dates along the line of the work upon which the contractors were engaged, other stone which was subsequently used and accepted by the contractors; and it was for such stone that the recovery in this action was had. There was not, therefore, a fatal variance, and we see no reason for reversing the judgment. “ The judgment should be affirmed.” James Troy for appellants. L. Laflin Kellogg for respondent. [MAJORITY — Earl, J.,] Earl, J., reads for affirmance. All concur. Judgment affirmed.