Miller v. Mead — 26 N.Y. St. Rep. 155

Majority

p. 155

David Miller, Resp’t, v. Sarah F. Mead, App’lt.

(Supreme Court, General Term, First Department,

Filed July 9, 1889.)

Headnote

Mechanic’s lien — Abandonment by contractor — Effect as to MATERIALMEN — LAWS 1885, CHAP. 342, § 1,

Where an owner makes a contract for the completion of houses, he to

p. 156

advance a sum of money, and on the fulfillment of the contract to convey the premises to the contractor for a named consideration, and the contractor subsequently abandons the contract, a person who furnished stone to the contractor is entitled to a lien.

Appeal from a judgment at special term in action to foreclose mechanic’s lien.

The defendant, Sarah F. Mead, being the owner of certain premises, entered into a contract by her agent, George W. Mead, with one 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 G. The contractor G. entered upon the premises under his contract with George W. Mead. He employed plaintiff under a written contract 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 materials. The contractor abandoned the contract. The plaintiff filed a lien against the premises.

George W. Mead, for app’lt; W. E. Stewart, for resp’t.

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.