Opinion
April 27, 1971
Appeal from an order of the Supreme Court at Special Term, entered in Schenectady County, which canceled a bond given by respondent Aaron T. Corporation to discharge a mechanic's lien filed by appellant Frost Electric. The contest is between codefendants in a mortgage foreclosure action. Appellant, Frost Electric, Inc., a subcontractor, has obtained an award in arbitration of $12,000, plus interest and costs, against respondent, Aaron T. Corporation, the general contractor. By contract dated November, 1968, appellant contracted with respondent to perform certain electric work. The contract contained a waiver of lien clause sufficient under section 34 Lien of the Lien Law. When respondent defaulted, appellant left the project and filed a notice of lien for $17,005.24, which was discharged by an order entered on stipulation of the parties agreeing to the posting of a bond for $34,000. Appellant then demanded arbitration pursuant to the contract and obtained an award for $14,028.99, including interest and costs, upon which it entered judgment. Appellant seeks recovery of the judgment from the security of the bond, claiming its statutory lien rights on the grounds that the contract was abandoned. A contract may be abandoned by mutual actions of the parties that clearly and unequivocally point in that direction ( Armour Co. v. Celic, 294 F.2d 432), but a breach standing by itself does not indicate an abandonment which would revive appellant's lien rights. ( Cummings v. Broadway-94th St. Realty Co., 233 N.Y. 407.) The evidence here does not indicate abandonment of the contract. On the contrary, the appellant demanded arbitration under its terms. Having voluntarily contracted away its lien rights, appellant cannot now seek to collect a personal judgment out of the proceeds of a bond posted to discharge the improper notice of lien. It cannot both affirm and disavow the contract. Having proceeded by arbitration, its rights are upon the judgment, not the bond. ( Brescia Constr. Co. v. Walart Constr. Co., 238 App. Div. 360.) Nothing in section 35 Lien of the Lien Law aids appellant. That system preserves arbitration rights. It does not deny contracting parties the ability to agree to waive a lien. Order affirmed, with costs. Herlihy, P.J., Reynolds, Greenblott, Cooke and Simons, JJ., concur.