
    Frederick Duhrkop, Respondent, v. Isaac White, Appellant.
    
      Builder —failure of, to furnish a statement to the building department of New York city — not a defense to a mechanic’s lien.
    
    An omission on the part of a builder to comply with the requirements of section 89 of chapter 275 of the Laws of 1892, which provides that a statement of alterations to be made in a building, required to be submitted to the building department of New York city, must proceed from “the owner, or his agent or architect,” is not available as a defense in an action brought by the builder to foreclose a mechanic’s lien, where the owner fails to prove that the builder agreed to submit any such statement, and the owner has suffered no damage by reason of such omission, but, on the contrary, it is affirmatively shown that, while the work was in progress, it was stopped on the occasion of a visit from the inspector of buildings, and was subsequently allowed to proceed, without objection, thus indicating the assent of the building department to the alterations.
    Appeal by the defendant, Isaac White, from a judgment of the Court of Common Pleas in and for the city and county of Hew Y orle in favor of the plaintiff, entered in the office of the clerk of said court on the 25th day of Hovember, 1895, upon the report of a referee in a suit to foreclose a mechanic’s lien.
    This appeal was transferred from the first department to the second department.
    
      Samuel Greenbaum, for the appellant.
    
      Frank J. Dupignac, for the respondent.
   Per Curiam :

In the summer of 1893 the plaintiff constructed two ovens in the cellar of certain property on Second street, in the city of Hew York, belonging to the defendant. The contract for the building of these ovens was oral and the parties differ materially in respect to its terms. They agree, however, that the price to be paid for the work was $2,400. The precise part of the premises in which the ovens were to be placed was the subject of considerable discussion between the plaintiff and the defendant. The defendant’s idea seems to have been that they should be located under the sidewalk; whereas the plaintiff suggested that a preferable place would be a dark part of the cellar, under a carriageway. They were actually built in this part of the cellar instead of under the sidewalk. The result appears to have been that when in use they produced an uncomfortable degree of heat on the upper floors of the premises, which were occupied as tenements, and also melted the ice in a neighboring icebox, and heated the water in certain pipes which supplied the building. An effort was made by the plaintiff to reduce the effect of the heat given out from the ovens, by constructing a wall and making certain other changes in the cellar. This did not satisfy the defendant, however, who insisted that the plaintiff had agreed to move the ovens and rebuild them under the sidewalk if they caused the premises to become overheated. The plaintiff refused to do this, and denied that he had ever agreed to do it. Out of the dispute thus arising has proceeded the present litigation.

The proper disposition of the case depends chiefly upon questions of fact, which were determined by the referee on conflicting evidence. His decision in favor of the plaintiff finds such ample support in the proof that we should not be justified in setting it aside simply because another view of the facts, based upon a different estimate of the credibility of the respective witnesses, would have warranted a judgment for the defendant. The referee must have been satisfied that the plaintiff stated the terms of the agreement correctly, and that the defendant did not. In his opinion he declares that nothing was said with reference to the heat of the ovens, except that the plaintiff assured the defendant that the ovens would cost him nothing if they did not bake well. It also appears that, although the defendant frequently visited the building while the ovens were in process of construction, he made no objection to their location, and the subsequent work done in the cellar, for the purpose of lessening the effect of the heat, is found by the referee to have been performed by the plaintiff gratuitously. These conclusions of the trial court, being based upon evidence sufficient to sustain them, should be upheld.

Only a single question of law is argued in the brief of the learned counsel for the appellant, who urges that the failure of the plaintiff to procure a permit from the building department for the construction of the ovens, and the alterations in the premises in connection therewith, should defeat any recovery in his behalf in this action.

A reference to the statute shows that the statement which it requires to be submitted to the superintendent of buildings mint proceed from “the owner, or his agent or architect.” (Laws of 1892, chap. 275, § 39.) There is no proof that plaintiff ever agreed with the owner, or undertook to submit any such statement in his behalf, or procure the same to be approved. There is an affidavit by the plaintiff in the record, verified long after the beginning of the action, and filed with the department of buildings in the city of New York, which refers to these ovens, and states that the affiant “was authorized” by Isaac White, the owner, to make application for the proposed work, but this paper cannot be regarded as an admission that the plaintiff had entered into any engagement binding himself to make such application. Not only was there a failure to prove that the defendant had suffered any damage by reason of the omission to obtain a permit, but it was affirmatively shown that while the work was in progress it was stopped on the occasion of a visit from an inspector of buildings, and was subsequently allowed to proceed without objection, thus indicating the assent of the building department to the desired alterations.

We find no reason for interfering with this judgment, and it should be affirmed, with costs.

All concurred.

Judgment affirmed, with costs.  