
    James G. French et al., App’lts, v. John George Bauer et al., Resp’ts.
    
    
      (New York Common Pleas,
    
    
      General Term,
    
    
      Filed December 1, 1890.)
    
    Appeal—Mechanics’ Lien.
    The question whether one who was employed by a sub-contractor, and who filed his lien after the sub-contractor had been paid in full, can recover the amount of his lien from the owner, where the last payment to the contractor became due and is paid after the filing of such lien, Held, to be of sufficient importance to entitle it to be determined by the court of appeals.
    Application for leave to appeal to the court of appeals.
    
      JE. D. McCarthy, for app’lts; James R. Angel, for resp’ts.
    
      
       See 32 N. Y. State Rep., 326.
    
   Bischoff, J.

The question of law determined adversely to the plaintiffs by the general term of this court in June, 1890, was as follows:

“ Can a mechanic’s lienor, the statutory provisions respecting filing and serving notice of lien having been duly fulfilled, who was employed by a sub-contractor to furnish work and materials, which he did with the knowledge and consent of the owner of the premises, recover the amount of his lien from such owner where subsequently to the filing of the lien the last payment by the owner becomes due and is paid although the sub-contractor who employed the lienor had been paid in full before the lien was filed,” it also appearing that the sub-contractor, at the time of payment to him, had fully performed his contract and was entitled to payment.

I am unable to find, after examination, that the question presented has ever been determined by the court of appeals in respect to the Mechanic’s Lien Law, chap. 342, Laws of 1885.

The precise question was determined by this court in February, 1887, in Hagan v. The American Baptist Home Missionary Society, 14 Daly, 131; 6 N. Y. State Rep., 212; and it was there held, that in the case mentioned the employee of the sub-contractor could not recover from the owner. The appellant in the present case, referring to Hagan v. The American Baptist Home, etc., urges as one of the reasons why his present application should be granted, that the decision in that case was by a divided court, the prevailing opinion being by Bookstaver, j. concurred in by Allen J. and dissented from by Larremore, Ch. J. It appears however that the opinion in the present case, also by Bookstaver, J., was concurred in by Larremore, Ch. J. Hagan v. The American Baptist Home, etc., is cited with approval by the general term of the supreme court, fifth department, in Weisemair v. The City of Buffalo, 32 N. Y. State Rep., 755, the opinion being by Dwight, P. J., and concurred in by Macomber and Corlett, JJ., although the general term in the same department were unanimous in their opinion in Vogel v. Luitwieler, Impleaded, etc., 23 N. Y. State Rep., 313, relied upon by appellants as containing a view contrary to that expressed by the general term of this court upon the appeal herein. While I do not agree with the appellants that the question in this case, and in Hagan v. The American Baptist Home, etc., was similar to that litigated in Vogel v. Luitwieler, it not appearing in the last-mentioned case that the contractor or sub-contractor had been fully paid upon the completion of their contracts, before the filing of the defendant Luitweiler’s notice of lien for material supplied to the sub-contractor and at his request, I do believe that the question presented, in view of the many persons who may be affected by the vast and constantly occurring building enterprises in this city and elsewhere, is of sufficient importance to entitle it to be determined by the court of last resort.

The appellants should have leave to appeal to the court of appeals.

Daly, Oh. J., and Pryor, J., concur.  