
    GRANTWOOD LUMBER AND SUPPLY COMPANY, PLAINTIFF IN ERROR, v. JOHN L. ABBOTT, BUILDER, AND MATILDA WILLMAN, OWNER, DEFENDANTS IN ERROR.
    Submitted July 7, 1910
    Decided February 27, 1911.
    1. Where improvements are limited to changing, increasing and repairing the interior arrangements and accommodations of an old building to suit the convenience or the fancy of the owner, they are repairs or alterations within the meaning of the Mechanics’ Lien law. Pamph. L. 1898, p. 538.
    2. Under section 10 of the Mechanics’ Lien law (Pamph. L. 1898, p. 541), a building is not subject to lien for a debt owing for materials used in repairing or altering the building, unless the owner contracted the debt, or in writing consented to'its being contracted by some other person.
    
      3. A written contract between the owner and builder, whereby the builder contracted to furnish materials for the repair or alteration of a building, is not a consent of the owner in writing required to render a debt owing by the builder to a materialman for materials a lien upon the building under section 10 of the Mechanics’ Lien law. Pampfo. L. 1898, p. 541.
    On error to the Bergen County Circuit Court.
    Before Gusimere, Chtee Justice, and Justices Trehchard and MustturjSL
    For the plaintiff in error, Mackay & Mackay.
    
    For the owner, Weller & Lichtenstein.
    
   The opinion of the court was delivered by

Trenchard, J.

The plaintiff company brought suit in the Bergen Circuit Court, and in its declaration averred that the debt sued for, contracted by the defendant John L. Abbott, builder, was, by virtue of the Mechanics’ Lien law (Pamph. L. 1898, p. 538), a lien upon a dwelling-house and curtilage therein described, of Matilda Willman, owner. The builder did not defend. The owner filed pleas—first, that the builder did not undertake or promise as complained, and second, that her building and lands were not liable to the supposed debt.

At the trial it appeared that the building in question was erected in 1906; that in January, 1909, Matilda Willman purchased the building and land in question; that in the same month she entered into a written contract with John L. Abbott whereby he contracted to do work upon and furnish materials for the building; that between February 2d, 1909, and April 23d, 1909, Abbott, the builder, purchased of the plaintiff, and delivered on the premises, the materials for which the lien is claimed; and that the contract between the owner and builder was not filed until May 10th, 1909.

At the close of the evidence the trial judge directed a verdiet in favor of tiré owner; at' tire samé túne directing a verdict for the plaintiff against the builder.

The judgment entered upon the verdict for the owner is brought here for review, and the only error assigned is the direction of such verdict.

We are of opinion that it was properly directed.

We have pointed out that the building was three years old at the time the materials were furnished. The improvements contemplated by the contract, and made, in fact, seem to have been limited to changing, increasing and repairing the interior accommodations and arrangements of the building to suit the convenience or the fancy of the owner. This is conclusively shown by an examination of the specifications annexed to the contract, there being no other evidence upon the subject. The materials in question were, therefore, for repairs or alterations only within the meaning of the Mechanics’ Lien law. Updike v. Skillman, 3 Dutcher 131; Combs v. Lippincott, 6 Vroom 481.

It remains only to consider whether the plaintiff acquired a lien under section 10 of the Mechanics’ Lien law. Pamph. L. 1898, p. 541. That section has been construed in this court in Murphy v. Hussa, 41 Vroom 381. It was there held that, under that section of the statute, a building is not subject to lien for a debt owing for work or materials used in repairing or altering the building, unless the owner contracted the debt, or in writing consented to its being contracted by some other person.

Clearly the debt now in suit is not within the statutory class. It was not contracted by the owner but by the builder. The owner did not in writing consent to its being contracted by the builder. The contract between the owner and the builder whereby the builder contracted to furnish the materials for such repairs and alterations, is not a consent that the builder should contract the debt.

The judgment under review will be affirmed.  