
    Tunis E. Butler, Respondent, v. The Aquehonga Land Company of Staten Island, New York, and Edward P. Doyle, Appellants.
    
      Mechanic’s lien — work performed by a sub-contractor with, the knowledge and consent of the owner.
    
    The mere fact that a sub-contractor performs work under his contract, with the knowledge and consent of the owner, does not entitle him to a lien upon the premises.
    Appeal by the defendants, The Aquehonga Land Company of Staten Island, New York, and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Richmond on the 4th day of June, 1902, upon the decision of the court, rendered after a trial at the Richmond Special Term, directing a foreclosure and sale under a mechanic’s lien.
    
      Louis Wertheimer, for the appellants.
    
      William D. Gaillard, for the respondent.
   Jenks, J. :

The general principle is that the lien of the sub-contractor attaches to the locus in quo perforce of the owner’s indebtedness to the contractor. (Van Clief v. Van Vechten, 130 N. Y. 571 ; Brainard v. County of Kings, 155 id. 538.) The plaintiff, with the burden upon him (Brainard v. County of Kings, supra), does not show that he is within the circumstances of either one of the three conditions stated in Van Clief ’s Case (supra), and approved in Brainard’s Gase (supra). He cannot have his judgment of foreclosure unless he can take his case out of the general rule.

This he would do because the work was done with the knowledge and consent of the owner. He pleads such circumstances, and the defendant company (by clerical error in its answer, it insists) does not deny the allegation. So the precise question is whether, regardless of the contract or any condition arising from it, the lien of a sub-contractor attaches to the locus in quo provided his work under the sub-contract was done with the knowledge and consent of the owner. I think that it does not. Section 4 of the Lien Law (Laws-of 1897, chap. 418) in part provides: If labor is performed for or materials furnished to a contractor or sub-contractor for an improvement, the lien shall not be for a sum greater than the sum earned and unpaid on the contract at the time of filing the notice of lien, and any sum subsequently earned thereon. In no case shall the- ' owner be liable to pay by reason of all liens created pursuant to-this article a sum greater than the value or agreed price of the labor and materials remaining unpaid, at the time of filing notices of such liens, except as hereinafter provided.” If mere knowledge and consent establish liability in the owner to the sub-contractor so that the-lien of the latter attaches to the locus in quo, then practically such liability would' exist in every case where the owner knew that there was a sub-contractor and yet permitted him to continue the work. In other words, the owner must either show ignorance of the existence of .the sub-contractor, or his own refusal to permit the contractor to do work under his sub-contract. If he simply stand by and see a sub-contractor at work, though presumably upon his subcontract, yet such acquiescence permits the lien to attach regardless of the conditions attendant upon the contract. This question is well discussed by the Appellate Term in La Pasta v. Weil (20 Misc. Rep. 554).

Pell v. Baur (133 N, Y. 377), mainly relied upon by the -learned' ■ counsel for the respondent, does not establish his proposition. The; discussion on page 382 is upon the policy of the law which permits, reimbursement despite the non-existence of agreement between owner and sub-contractor. The conclusion of the court is not that.. the lien attaches merely upon the assent, Indeed, the practical con-, elusion of the court is that the sub-contractor has a lien “for-the. amount of his debt upon the unpaid portion of the contract price¡”'

The judgment should be reversed and a new trial be granted,,, with costs to abide the final award of costs.

Goodrich, P. J., Bartlett, Woodward and Hooker, JJ., concurred.

. Judgment reversed and new trial granted, costs to-abide the final award of costs.  