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It is provided by chapter 342 of the Laws of 1885 — the general Mechanics' Lien Law of this state — as follows:
"§ 1. 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, * * * with the consent of the owner as hereinafter defined, or his agent, or any contractor or subcontractor, or any other person contracting with such owner to erect, alter or improve, as aforesaid, within any of the cities or counties of this state, may * * * have a lien for the principal and interest of the price and value of such * * * material upon such house * * * and upon the lot * * * upon which the same may stand, or be intended to stand, to the extent of the right, title and interest at that time existing of such owner, whether owner in fee or of a less estate, * * * or of the owner of any right, title or interest in such estate, which may be sold under an execution." * * *
"In cases in which the owner has made an agreement to sell and convey the premises to the contractor, or other person, such owner shall be deemed to be the owner, within the intent and meaning of this act, until the deed has been actually delivered and recorded conveying said premises pursuant to such agreement." (§ 5.)
The parts of the statute above quoted have been recently construed by the Court of Appeals in Schmalz v. Mead (125 N.Y. 188, which affirms 15 Daly, 223), the facts of which were as follows: The defendant, the owner in fee of the land (the same land involved in the case at bar), contracted, in November, 1885, to sell and convey it to George Kuhn for an agreed price, and to advance to the vendee a certain sum in installments to enable him to erect buildings of a kind agreed to thereon. The vendor covenanted that when the buildings were completed he would convey the land and take the grantee's bond, secured by a mortgage on the land, for the payment of the purchase-price and the sum to be advanced for building purposes. Under this contract the vendee entered into possession and began the erection of the buildings, but soon failed and abandoned his purchase. The vendor had performed her part of the contract, and no advances were due from her when the lien for materials furnished the vendee was filed or foreclosed. The vendor defended the action to foreclose the lien on the grounds: (1) That the contract of
sale and for the erection of buildings was not sufficient evidence of the owner's, vendor's, consent within the statutory meaning of "the consent of the owner" that the buildings be erected. (2) That only the interest of George Kuhn, vendee and contractor, could be subjected to liens. (3) That the lien could attach only to advances due from her, if any, and not to her interest as vendor in the real estate. These defenses were overruled and the lien was held to attach and bind the vendor's interest in the realty. Schmalz v. Mead differs from the case at bar only in the fact that the contract of sale and for building did not contain the stipulation contained in the agreement under consideration and quoted in the statement of facts, that if any mechanic's lien was filed it should be subject to the lien and claim of the vendor. The defendant's relation to and interest in the land constituted her the owner thereof within the meaning of the word "owner" as defined in the fifth section of the Mechanics' Lien Law. (Schmalz v. Mead, supra.) And her estate could be subjected to the liens of persons furnishing labor or materials for the construction of buildings erected thereon with her consent. By the contract entered into May 25, 1887, between Mrs. Mead, then the owner of the fee, and Gierke, and by him assigned to Grippentrog with her consent, she not only agreed to sell and thereafter convey the land, but bound the vendee to build within a specified time six houses according to plans which had been agreed on, to cost not less than $6,000 each, she agreeing to advance $21,000 for the purpose of partly paying the cost of their erection; which contract was proof of her (the owner's) consent that the buildings be erected, and rendered her interest in the premises subject to such liens as might be filed for labor and materials furnished for the construction of the houses, unless in some way relieved from liability by the stipulation that any mechanic's lien should be subject to her interest in the property. (Schmalz v. Mead, supra; Rollin v.Cross, 45 N.Y. 766; Husted v. Mathes, 77 id. 388; Burkitt v. Harper,
79 id. 273; Otis v. Dodd, 90 id. 336.)
The stipulation in respect to the priority of liens did not destroy the owner's consent that the houses should be built, nor diminish its effect, nor did it lessen the absolute obligation resting upon the vendee to build them. It was not the design of the parties to accomplish any such results, but simply to circumvent the statute and defeat the rights given by it to persons furnishing labor and materials for the work, which design could not be accomplished by such a stipulation as against persons not in privity with either of the parties to it who should, without notice of the stipulation, furnish labor or materials for the work.
The judgment should be affirmed, with costs.
All concur.
Judgment affirmed.