| NY | Mar 10, 1896
This action was brought to foreclose a mechanic's lien. Prior to August, 1891, one Edward Smith was the owner of the premises at the northeast corner of Ninety-first street and Amsterdam avenue in the city of New York, and, as such, entered into a contract with one John W. Hutton to construct certain buildings thereon. On the 16th day of November, 1891, Hutton contracted with the plaintiffs to furnish and deliver certain hardware for the buildings at *675 the agreed price of $498.68, which hardware was subsequently furnished, a portion thereof prior to the 20th of November, 1891, and the remainder thereafter. On the 28th day of December, 1891, the plaintiffs caused to be filed in the office of the clerk the notice of the lien which is here sought to be foreclosed.
On the 31st day of August, 1891, the premises were sold under a decree entered upon the foreclosure of a mortgage and the same were bid in by the defendant Simon Arendt, but no deed thereof was delivered or possession surrendered to him until November 20th, 1891.
The trial court found as a fact that the plaintiff's claim, $498.68, had been paid by Smith to contractor Hutton.
This action was prosecuted upon the theory that the materials were furnished by the plaintiffs after the defendant Arendt had purchased the premises at the foreclosure sale; that they were used in the buildings and tended to improve the property; that they were so furnished with his knowledge and implied consent, and that, consequently, he should pay therefor, relying uponRollin v. Cross (
The trial court, in speaking of the relation of the parties, says, with reference to the defendant Arendt, that he was the equitable owner, and, as such, permitted Smith to proceed with the work on the premises, and that "Smith must be held to be the agent of Arendt, and the materials furnished and the work done at Smith's request be regarded as done with the knowledge and consent of Arendt." It will be observed that the court treats Arendt as the equitable owner and Smith as *676 the agent. If their legal relation be that of principal and agent, the position of the trial judge cannot be tenable; for if Smith became the agent of Arendt, his payment of the plaintiffs' claim to the contractor inured to the benefit of his principal and discharged Arendt and his premises from all liability to the plaintiffs.
We think, however, that the question of principal and agent is unimportant. Smith remained in possession after the public sale, and caused the buildings to be completed. He paid Hutton therefor, as he was bound to do under his contract. Whether he completed the buildings under some undisclosed arrangement with Arendt, or upon his own account, hoping to find a purchaser or effect a loan with which to redeem the premises is not material, for if he in good faith paid the contractor before the lien was filed, this action cannot be maintained. (French v. Bauer,
Upon this question we fully agree with the views expressed by the learned General Term of the Court of Common Pleas. We, however, think in reversing the judgment that court should have ordered a new trial. It is contended on behalf of the appellants that the payment by Smith to Hutton was not in fact made. The finding of the trial court that it was made was upon the request of the defendants. The trial court does not appear to have regarded it as material. We think it but fair that the plaintiffs should have an opportunity to again be heard upon this question.
The judgment of the General Term of the Court of Common Pleas should be modified so as to grant a new trial, and, as so modified, affirmed, with costs to abide the event.
All concur.
Judgment accordingly. *677