
    The Berger Manufacturing Company, Plaintiff, v. Arthur Block and Samuel Block, Respondents; Fred or Frederick Miller, Defendant; and Jacob M. Leonhardt, Appellant.
    
      New trial—newly-discovered evidence that an owner' of property, on which repairs had been made by direction of the tenant, had authorized the latter to have them made.
    
    Where the judge presiding at the trial of an action to foreclose a mechanic’s lien refuses all relief to a defendant lienor who had performed work upo.n the premises at the instance of a tenant thereof, on the ground that he did not perform such work with the consent or at the request of the owners, affidavits showing that the defendant lienor discovered, for the first time, after the trial, the existence of a written agreement, independent of the lease, hy which the owners agreed to pay one-half of the expense of certain repairs and improvements to he made under the direction of the tenant, is sufficient to authorize the granting of a new trial as to the defendant lienor on the ground of newly-discovered evidence, especially where the owners, while denying that the agreement covered the work done hy the defendant lienor, admit its existence, hut neglect to produce the agreement upon the motion although it is within their power to do so.
    Appeal by the defendant, Jacob M.. Leonhardt, from an order of the Supreme Court, made at' the Hew York Special Term and entered in the office of the clerk of -the county of Hew York on the 2d day of Hovember, 1901, denying sáid deféndant’s motion for a new trial upon the ground of newly-discovered evidence. ■ ■
    
      
      Roswell W. Keene, for the appellant.
    
      Edward W. S. Johnston, for the respondents.
   Per Curiam:

The motion for a new trial is based upon the ground of newly-discovered evidence. The action was brought to foreclose a mechanic’s lien on certain premises owned by the respondents, and occupied as tenant by the defendant Miller; the defendant Leonhardt was joined as a lienor. The liens of the plaintiff and the present appellant were the only liens upon the premises. Upon the trial of the action judgment was rendered foreclosing the plaintiff’s lien and directing a sale of the property for the amount of the lien, with costs. The court, however, denied any right to the defendant Leonhardt, as lienor, holding that he did not perform the work, or furnish materials, for the improvement of the property with the consent or at the request of the owners. In support of his motion the appellant read affidavits of one Ruby and the defendant Miller. From these affidavits, together with those of the appellant himself and the appellant’s attorney, it appears that after the trial of the case, for the first time, it was known to the appellant or his attorney that there was a written agreement, other than the lease, that the defendant owners would pay one-half of certain repairs and improvements that should be made under the direction of the defendant Miller. These repairs and improvements, for which the owners agreed to pay one-half, included plumbing, carpenter and other work necessary to fit up the premises for the business of the lessee and his occupancy.

If there was such an agreement and the work performed by the lienor was done thereunder, and the lessors promised to pay for one-half of the same, then it is clear that it would operate as a consent and be sufficient to support a lien. One of the defendants in his affidavit admits the written agreement, but claims that it did not cover- the items of work embraced in Leonhardt’s claim. It is evident that the landlords could produce the writing and show clearly that the items for which claim was made were not embraced therein, and thus furnish a complete answer to this motion. This they do not do, but make an equivocal denial of the performance of this work thereunder. It does not 'appear that Leonhardt knew of the existence of this agreement at the time of the' trial. On the Contrary, the undisputed proof is that he did not know of its existence. There is no dispute but that he performed the work, and he should be paid therefor by the person liable to pay. Under the circumstances, we do not think that he. should be chargeable with negligence- in not. finding out from Miller that such an agreement was in existence. The defendant Block, knew of its existence, its terms and conditions, and could defeat this motion by producing it, unless it contained a promise to pay for the work. Under such circumstances, we think that the motion should have been granted and that the proof on the part of Leonhardt, although- quite meagre, coupled with the affidavit of Block, is sufficient ground for granting it. It follows that the order should be- reversed, with- ten dollars costs and disbursements, and the motion, for a" new trial granted, with costs of the trial to be paid by the appellant to the respondents Block.

Present—■ Yan- Brunt, P. J., O’Bbien, Ingraham and Hatch, JJ.

Order reversed, with ten dollars costs and disbursements, and motion for new trial granted, with costs of the trial to be paid by the appellant to the respondents Block.  