13 N.Y.S. 827 | New York Court of Common Pleas | 1891
Where a lien for unpaid services or material is claimed against the interest of the owner upon whose land the improvements were made, it must affirmatively appear, either that such services were performed, or that such materials were furnished, at the request of the owner or his agent, or that the owner, or some person contracting with him for the making of the improvements, or a person acting under or at the request of the person so contracting with the owner, consented to the performance of such services, or the furnishing of such materials, and, in the absence of such a request or consent, the interest of the owner of the land is not chargeable. Chapter 342, Laws 1885, § 1; Nellis v. Bellinger, 6 Hun, 560, approved in Otis v. Dodd, 90 N. Y. 336, and in Schmalz v. Mead, and Wood v. Mead, 26 N.E. Rep. 251, (decided by the court of appeals, January 13, 1891.) From the decision of the learned trial justice, upon which the judgment appealed from was entered, it appears that the defendant MacKellar was the owner of certain lands, situate on the corner of 107th street and Fourth avenue, which he had agreed to sell to the defendant Susan M. Sharkey, and that, pending the performance of the executory agreement of sale, she was let into possession, but it does not appear that such possession was accorded to enable her to undertake the improvements. The decision is silent as to any request of or consent by