127 N.Y. 544 | NY | 1891
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *546
It is provided by chapter
"§ 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 *547 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 (
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.