The holding of the learned judge seems to have been that the bond was insufficient because it was signed not by the contractor, but by the National Commercial Bank, the assignee of the contractor, and that, in order to procure a discharge of the lien under this provision of the law, the bond must be signed by the original contractor with the municipality. No other criticism is made of the bond presented. In section 2, c. 418, p. 515, Laws 1897, the term "contractor" is defined as “a person who enters into a contract with the owner of real property for the improvement thereof." By strict interpretation this would seem to exclude either the personal representatives of a deceased contractor or his assigns. Under the strictest interpretation of the statute an assignee of the contractor might procure a discharge of the lien if only the contractor himself be upon the bond. No reason is suggested, however, why the bond of the contractor should be required and the bond of the assignee prohibited, nor can any reason be assigned why the representatives of a deceased contractor should not be allowed to procure this money upon the giving of a bond with a sufficient surety. The surety must be approved by the judge, which is ample protection to the municipality. It can hardly be conceived that the legislative intent was to bar the representatives of a deceased contractor from this right to procure a discharge of the lien or to bar an assignee of the contract from recovering the moneys which are his by assignment duly made, providing the contractor refused to join in the undertaking. We are of opinion, therefore, that this provision should not receive the strict construction contended for by the respondent, but that within the permission of the statute an assignee of the contract and of the moneys due thereupon may procure a discharge of the lien by filing an undertaking in which the assignee shall appear as principal and with such surety as is provided by the act of which the justice may approve. We are not unmindful of the change in the phraseology of the lien law from former lien laws, as found in chapter 315, p. 403, of the Laws of 1878, and chapter 629, p. 1180, of the Laws of 1892. In those acts the term "contractor" was defined as the person with whom the contract with the city is made, his assigns, or legal representatives. In the present act the words "assigns or legal representatives" are omitted from the definition of the term "contractor." Prima facie this would seem to indicate an intent on the part of the Legislature to deprive either the assignee or the legal representatives of a contractor of the benefits of this provision of the act of 1897 as amended by Laws of 1898. The contention that such an amendment is not conclusive evidence of such intent finds some support in our holding in the Matter of Cullinan (Maher Certificate), 109 App. Div. 816, 96 N. Y. Supp. 751. The inconvenience that would arise from the strict construction of the statute which has been given by the learned judge before whom the application was made, and the inability of respondent's attorney to suggest any conceivable ground for withholding either from the representatives of a deceased contractor or from his assignee the right to make this application, lead us to give to the statute a liberal interpretation, and to hold that the assignee stands in the place of the contractor, and is and 132 New York State Reporter entitled to the privilege given to the contractor by the provisions of the statute quoted. It is provided in the act itself, by section 22, that the article "is to be construed liberally to secure the beneficial interests and purposes thereof." Laws 1897, p. 525, c. 418. By section 32, c 677, p. 1492, Laws 1892 (the statutory construction law), it is provided: "The provisions of the law repealing a prior law which are substantially reenactments of provisions of a prior law shall be construed as a continuation of such prior law and not as new enactments." The order of the justice refusing to approve the undertaking as sufficient should be reversed. Order reversed, with $10 costs and disbursements, with leave to renew application upon the same or additional papers to any justice of the Supreme Court. All concur. (112 App. Div. 1) BUELLESBACH et al. v. HENDERSON. (Supreme Court, Appellate Division, First Department. March 23, 1906.) CONTRACTS-PARTIAL PERFORMANCE-RECOVERY. Where a contract for the construction of the iron work on certain buildings required plaintiffs to perform the work according to the plans and specifications, which required that the fire escapes be connected by a slanting ladder, and that the upper escapes on each house be connected on the roofs by an iron ladder and two iron bridges, and the escapes as constructed did not comply with such specifications, the necessary expense to complete the same being $350, plaintiffs were not entitled to recover the full contract price, in the absence of proof of defendant's waiver of the provisions of the contract. Appeal from Judgment on Report of Referee. Action by Joseph Buellesbach and others against William Henderson. From a judgment entered on a referee's report in favor of plaintiffs, defendant appeals. Reversed. Argued before O'BRIEN, P. J., and PATTERSON, INGRAHAM, LAUGHLIN, and CLARKE, JJ. Henry C. Henderson, for appellant. INGRAHAM, J. The complaint alleges that the plaintiffs entered into a contract with the defendant, William Henderson, a copy of which was annexed to the complaint, by which they were to furnish certain iron work for four houses on the west side of Eagle avenue for the sum of $796.90; that they proceeded with the said work and completed the same according to the terms of the said contract; and that no part of the contract price has been paid except the sum of $100; and asks judgment for the sum of $696.90. The defendant answered, denying that the plaintiffs completed and performed the work mentioned in the complaint according to the terms of the contract under which the same was to have been performed, and alleged that the plaintiffs have refused, neglected, and failed to perform said work in the manner required by the terms of the contract. The referee's report found that the plaintiffs had entered into a contract with the defendant, as alleged in the complaint; that they completed the same in accordance with the terms of the said contract; that no part of the contract price has been paid except $100; and, as a conclusion of law, that the plaintiffs are entitled to a judgment for $696.90. The referee then found, at the request of the defendant, that one Diederick filed with the bureau of buildings, plans and specifications for erecting the buildings in question, which plans and specifications were approved by the said bureau, including the iron work in question herein; that the iron work mentioned in the said contract was understood between the plaintiffs and defendant to refer to the completion of iron work upon the buildings in question; that, prior to the time of making the agreement between the parties hereto, the plaintiffs had entered into an agreement with one Henry S. Diederick to construct the iron work upon the same buildings; that, by the agreement between the plaintiffs and the said Diederick, the plaintiffs were required to complete the iron work upon the buildings in question in accordance with the plans. and specifications therefor so approved by, and on file in, the bureau of buildings in the city of New York; that the said Diederick was unable to perform the contract upon his part; that the iron work mentioned in the agreement between the plaintiffs and the defendant, annexed to and made a part of the complaint herein, is the same iron work referred to in the agreement between the plaintiffs and the said Diederick, and the same iron work shown upon the plans and referred to in the specifications approved by, and filed in, the bureau of buildings by the said Diederick, as aforesaid; that, by the said plans and said specifications, the fire escapes to be constructed upon each of the buildings aforesaid were to be connected by a slanting ladder, the upper fire escape upon each house was to connect with the roof of the house by an iron ladder, and two iron bridges were to be constructed connecting two of the buildings; that the fire escapes constructed on each of the buildings in question are connected by verticle ladders; that the upper fire escape on each building has not been connected with the roof of the building by an iron ladder, nor by any other method; that the buildings have not been connected by bridges nor by any other means; that the expense necessary to make the iron work constructed by the plaintiffs, upon the houses in question, conform to that shown upon the plans and described in the specifications approved and filed as aforesaid, and to the agreement between the parties, in $350. It appears that these findings are entirely inconsistent with the referee's report. By the contract made between the plaintiffs and Diederick, he was to perform the work according to the plans and specifications, which required that the fire escapes were to be connected by a slanting ladder, and the upper fire escapes upon each house were to be connected on the roofs of the houses by an iron ladder and two iron bridges. The fire escapes as constructed did not comply with this contract, and the necessary expense to make the iron work constructed by the plaintiffs conform to that shown upon the plans and described. in the specifications is $350. Certainly the plaintiff was not entitled to recover the full amount of the contract, when he had not performed the work upon the performance of which depended his right to recover in this action. There is no finding of any waiver by the defendant and 132 New York State Reporter of the provisions of the contract. The form of the contract sustains the finding made by the referee on the requests of the defendant. It is apparent that the fire escapes as constructed were not such as required by the plans and specifications as filed in the building department. Certainly the plaintiff cannot recover for the completion of the contract, when the referee has found expressly that the contract as made by him was not completed and the work done was not in accordance with the contract. The cause of action is based upon the completion of the contract in accordance with the plans and specifications. The referee has found that the plaintiffs did not complete the contract in accordance with the plans and specifications, and they were not therefore entitled to judgment in this action. The judgment appealed from must therefore be reversed, and a new trial ordered before another referee, with costs to the appellant to abide the event. All concur. (112 App. Div. 4) March 23, 1906.) WABNICH v. DRY DOCK, E. B. & B. R. CO. (Supreme Court, Appellate Division, First Department. STREET RAILROADS-NEGLIGENCE-CONTRIBUTORY NEGLIGENCE-CHILDREN IN STREET-INJURY BY CAR. A bright child five years old allowed by its parents to play in the streets, is not as a matter of law, absolutely relieved from the obligation of exercising care in relation to vehicles properly in the street, and having been struck while attempting to cross a street railway track in front of an approaching car, the question whether such act of the child or the act of the parents in allowing the child to be unattended in the street, was negligence, should be submitted to the jury. [Ed. Note. For cases in point, see vol. 37, Cent. Dig. Negligence, §§ 124, 348; vol. 44, Cent. Dig. Street Railroads, § 257.] Appeal from Trial Term, New York County. Action by Lewis Wabnich, administrator of Rosa Wabnich, deceased, against the Dry Dock, East Broadway & Battery Railroad Company. From a judgment on a verdict for plaintiff, and from an order denying a motion for new trial, defendant appeals. Reversed. Argued before O'BRIEN, P. J., and PATTERSON, INGRAHAM, LAUGHLIN, and CLARKE, JJ. Bayard H. Ames, for appellant. INGRAHAM, J. The plaintiff's intestate was a child five years and two months old, large and bright for her age. She was run over by one of the cars on the defendant's road and received the injuries which resulted in her death, for which her father as her administrator brings this action. The jury found a verdict for the plaintiff, from which the defendant appeals. The trial judge charged the jury: "If you find that the accident occurred through the negligent act of the driver, that the little girl lost her life as the result of the accident, then you will take up the question of the compensation which the plaintiff shall receive." There was nothing said about contributory negligence either of the child, or her parents, if the child was non sui juris. The liability of the defendant was made to depend solely upon the question of the negligence of the defendant. The counsel for the defendant submitted to the court several requests to charge which were denied, and to which the defendant excepted. He asked the court to charge: "Second. If you find the plaintiff is non sui juris, were her parents or custodians free from all contributory negligence in permitting the child to be in the street unattended at the time and place in question. "Third. If you find that the infant plaintiff was sui juris, did it exercise the ordinary care of a reasonable prudent child of similar age in the same situation. "Fourth. Was the defendant company guilty of any negligence contributing to the accident. "Fifth. If you answer either the second, third or fourth questions in the negative, your verdict must be in favor of the defendant. "Sixth. If you answer all three questions in the negative, your verdict must be in favor of the defendant.” After exceptions to these refusals to charge had been taken, counsel for the defendant said: "Does your honor submit this case to the jury on the theory that the child was sui juris?" To which the court replied: "I have submitted the case to the jury upon what I have said in my charge. I have stated to the jury that if this child was in the street and on this track far enough from the horses, so that the driver had ample time to have stopped the horses if he had been observing what was going on before him, that is evidence from which the jury may find that the defendant is liable, no matter how the child got there." Counsel for the defendant then said: "I except to that portion of the charge." Subsequently, in answer to counsel for the defendant, the court again stated: "I have not submitted the question whether the child was or was not sui juris, because I do not think it has any bearing upon the case at all." The court thus took entirely from the jury any consideration of the contributory negligence of the child or of her parents in allowing her to go unattended on the street. This was error which requires reversal of the judgment. A bright child of five years allowed by its parents to play in the public street is not as a matter of law absolutely relieved from the obligation of exercising while in the street any care in relation to the vehicles properly there. Costello v. Third Ave. R. Co., 161 N. Y. 317, 55 N. E. 897; Adams v. Nassau R. R. Co., 41 App. Div. 334, 58 N. Y. Supp. 543; West v. Met. St. R. R. Co., 105 App. Div. 373, 94 N. Y. Supp. 250; Buscher v. N. Y. Transportation Co., 106 App. Div. 493, 94 N. Y. Supp. 798; Zwach v. N. Y. L. E. & W. R. R. Co., 160 N. Y. 362, 54 N. E. 785. Assuming that upon the evidence there was a question for the jury as to the negligence of the defendant, the defendant was entitled to have the jury instructed that the plaintiff's intestate while in the street was bound to exercise |