
    J. Philip Rinn, Appellant, v. The Electric Power Company of Staten Island and Others, Respondents.
    
      Mechanic’s lien in favor of an architect—plans 'merely prepared, and not executed, are not covered by it — disbursements and interest allowed:
    
    An architect is not entitled to file a mechanic’s lien against premises based merely upon services rendered in the preparation oí plans and specifications; the statute contemplates an active participation in the manual function of construction, and this involves actual supervision of the work and limits his lien to his claim for the work actually done.
    He is, however, entitled to a lien for all his expenses incurred in and about the construction of the building and to interest upon all sums found due him in the proceedings taken to foreclose a lien.
    Appeal by the plaintiff, J. Philip Rian, from so much of 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 8th day of June, 1895, upon the decision of the coin-fc rendered after a trial at the Richmond Special Term, as limits his lien to the sum of $6,006.22, with costs and allowances, and as denies a lien to him for the balance claimed to be due him of $4,281.
    
      Edviard B. Hill, for the appellant.
    
      Lester W. Clark, for the respondents.
   Hatch, J.:

The facts upon which this appeal is to be determined are practically without dispute. The action is to foreclose a mechanic’s lien.

. Plaintiff is an architect', and was employed by the defendant company in 1892 to prepare plans for and superintend the construction of a power house at New Brighton, Staten Island. His compensation, provided by agreement, was five per cent on the cost of the structure and expenses. After the preparation of the plans the company requested him to modify them by limiting the construction to one-half of the building. This plaintiff complied with by providing an eighteen-inch Avail running through the center of the proposed structure. The construction of this building Avas then entered upon, and when about half completed the company became insolvent and was placed in the hands of the receiver. When the work was abandoned $115,000 had. been . expended thereon, and to complete the same would have required about $50,000. The estimated cost of the whole building, when planned, was $330,000.

Plaintiff’s compensation as agreed upon ivas five per cent of the cost of the structure. But. by custom among architects, established upon the- trial, when the building is not erected, or if the erection is begun and not completed, the compensation is reduced by one and one-half per cent of the cost -of the part not erected, the compensation of five per cent being made up by a. charge of three and' one-half per cent for preparing plans and one and one-half per cent for supervision. The plaintiff’s expenses were $440.80.

- Plaintiff’s present claim is that lie. was entitled to a lien of $10,288.35, and, if not entitled to the whole gum, for more than the ■court has allowed. His claim is made tip by charging five, per cent on the. amount expended, three and one-lialf per cent on $216,000^ the estimated cost of completion, and expenses. The admitted payment is $3,427.45.

The court below found and stated plaintiff’s account as follows:

For preparing plans for the whole structure........... $11, 550 00

Expenses ..................................440 00

$11, 990 00

Payments........:......,. ........................ . 3, 427 45

$8, 562 55

:One-half .............: ....................'......■. $4, 281 22

One and a half for supervising $115,000 expended.... 1, 725 00 ■

$6,-006 22

which sum he determined Was a lien, and directed a personal judg-naent for the remainder of the claim.

■ The only substantial point in controversy relates- to tlie .extent of the lien. There is no decision in this State, that we are able to find, Where it has been held that an architect who simply prepares, plans and' specifications is embraced within the lien law of the- State: Wherever the question lias arisen the preparation of plans has. been accompanied by superintendence of the construction.

In Stryker v. Cassidy (76 N. Y. 50) the Court of Appeals held, reversing the General Term which denied the existence of the lien, that an architect was entitled to it. But in that case there was present the element of actual supervision. In disposing of this question the court said : “ The architect who superintends the construction of a building performs labor as truly as the carpenter who frames it, or the mason who lays the walls, and labor of a most important character.” The stress of the whole opinion is laid upon the fact that there is active participation ip the manual function of construction, rather than in the preparation of the plans for the edifice. In Bank of Pennsylvania v. Gries (35 Penn. St. 423) this distinction was recognized, and it was there held that an architect who only furnishes plans and performs no work upon the building is not entitled to a lien. In Ames v. Dyer (1 Adams [Maine], 397) it was held that a mould from which a ship’s timbers are formed does not enter into the structure and is, therefore, not embraced as material for construction. In Central Trust Co. v. Richmond, N. I. & B. R. Co. (54 Fed. Rep. 723) it was intimated that a consulting engineer, whose work was only advisory, would have no lien, but one who actually superintended would. In Phoenix Furniture Co. v. Putin-Bay Hotel Co. (66 Fed. Rep. 683) it was doubted if a lien could be maintained by an architect who only furnished plans- and specifications. In all the cases which have fallen under our observation the lien was denied, or there was concurrence of plans and superintendence. (Gardner v. Leck, 52 Minn. 522 ; Knight v. Norris, 13 id. 473 ; Van Dorn v. Mengedoht, 41 Neb.. 525.)

We think the court below was right in holding that it is the part the architect takes during the construction that draws his services within the lien law. This rule, as applied here, limited the lien to the actual superintendence of the part constructed. Before the construction was entered upon plaintiff was informed of the modification proposed, and changed his plans accordingly. When the construction was begun he then knew, and assented thereto, that the building which was to be erected was only one-half of the one originally proposed; that the other half might or might not be erected, as contingencies dictated. And when the work was begun, as well' as when work stopped, it was the common understanding that only the half would then be erected. It cannot, therefore, be said that more than this part was erected within the contemplation of the' parties, even though as part thereof,, the foundation for-another chimney* which might he used in the "other half, was laid. In fact its construction was never entered upon. The argument of plaintiff, that his plans may be used eventually in the construction of the other part,-does not aid' him. He never had a lien for his plans. If nothing had been erected he would have had his damages, no more. He has his judgment for damages now, and the court can no farther aid him. It is quite apparent, however, that plaintiff is entitled to a modification of Ms judgment. The court below only allowed him a lien for one-half of his expenses. He was entitled to the whole sum. This item was all incurred in and about the construction of the building and consequently- was subject to no deduction. This sum amounts to $220.80, which should be added to the amount allowed as a lien, and deducted from the general' judgment ordered. Plaintiff is also entitled to interest upon the respective amounts allowed. In all other respects we think the conclusion was right. The judgment will be modified in accordance with this opinion, and as modified, affirmed, with costs.

All concurred, except Cullen, J., not sitting.

. Judgment modified as stated in the opinion, with costs to the appellant.  