Action by David Miller against Sarah F. Mead and others, to foreclose a mechanic’s lien. The defendant, Sarah F. Mead, was the owner of certain premises, and by her agent, George W. Mead, entered into a contract with "one Herman Gierke to erect certain buildings thereon as specified in said contract, Mead to advance money to the contractor, and sell him the houses, when finished, for a certain sum, which contract was afterwards assigned to one Grippentrog. The contract was made and executed by George W. Mead, acting as the agent of the owner, Sarah F. Mead. The contractor, Edward Grippentrog, entered upon the premises under his contract with George W. Mead. He employed under a written contract plaintiff, David Miller, to furnish and set certain stone for him, required in the erection of said houses. The owner never employed the plaintiff to do any work for her, nor to furnish any material. The contractor abandoned the contract. The plaintiff filed a lien against the premises. From a judgment in his favor defendant, S. F. Mead, appeals. Act 1885, § 1, provides that “any person * * * who shall hereafter perform any labor or service, or furnish any materials which have been used, or’which are to be used, in erecting, altering, or repairing any house, ” etc., “ with the consent of the owner, as hereinafter defined, or his agent, * * * shall * * * have a lien to the extent of the interest of the owner. * * * In case there is no contract, then the amount of the value of such labor or material then remaining unpaid.”
Argued before Van Brunt, P. J„ and Brady and Daniels, JJ.George W. Mead, for appellant. W. IS. Stewart, for respondent.
We have examined with care the case at bar, and the case of Hackett v. Badeau, 63 N. Y. 476 , and we have been unable to discover any distinction in principle between them. In the case cited, chapter 478 of the Laws of 1862 was under consideration, and we have been unable to discover any difference between that act and the act chapter 342 of the Laws of 1885, by virtue of which the plaintiff claims, so far as it relates to cases of agreements for sale coupled with an agreement to make a building loan. It is true that in the one case the word “permission” is used, and in the other “consent,” referring to the owner, but this difference is in no respect material. In view of this adjudication, seeming to us to pass upon the precise question before us, it is needless for us to enter into a discussion relative to the construction of the act in question. The judgment appealed from must be affirmed, with costs.