
    McLEAN v. SANFORD et al.
    (26 App. Div. 603.)
    (Supreme Court, Appellate Division, Second Department.
    March 29, 1898.)
    1. Mechanic’s Lien—Repairs by -Lessee—Consent op Landlord.
    Where the owner o£ certain premises authorized his lessee to make “repairs and renovations” in his own discretion upon the leased premises, for which the owner was to allow him a stipulated amount, repairs made under this agreement subjected the premises to a claim for mechanic’s lien under Laws 1885, c. 342, as amended by Laws 1888, e. 316, authorizing a lien for repairs done with the consent of the owner.
    
      2. Same.
    More than 90 days after settling his account with the owner’s agent by accepting the agent’s note for the amount of his claim, a lienor made a small repair without the owner’s consent on the same premises, and not in continuation of the original work, and then filed a mechanic’s lien for his entire services. 'Held that, 90 days having expired from the completion of the original repairs, and the last repair having been made without the -owner’s consent, the lien could not be established under Laws 18S8, c. 310, requiring a lien to be filed within 90 days, the work to be done with the owner’s consent.
    Appeal from special term, Dutchess county.
    Action by George H. McLean against Helen M. H. Sanford and •others. Judgment for defendants, and plaintiff appeals.
    Affirmed.
    The following is the opinion of Mr. Justice BARNARD:
    William 0. Hudson took a lease from the Stuyvesant heirs of their place in Hyde Park, known as “Bflgewood,” for the term of three years from the 1st of May, 1893. The tenant was to pay $1,100 a year, monthly in advance. A part of the premises was rented by the heirs to Mr. Mund for agricultural purposes at the rent of $325, payable June 1, 1893. The Mund lease began to run the 1st of April, 1893, and Hudson was to be entitled to the rent from Mund. By the Stuyvesant lease to Hudson the tenant was to do certain work at his own expense, but Hudson was empowered to do certain other work, termed “repairs and renovations,” in his own discretion, and the owner was to allow him a sum not exceeding $500. This sum was to be taken from the Mund rent and the first two months of the Hudson lease. The plaintiff’s assignor did plumbing •work, and furnished material to the amount of $543.23. All this work was completed on the 3d of June, 1893. On the 1st of June, 1893, Hudson asked him for •the bill in duplicate, so as to turn in one of the copies to the owners. On the 6th of June, 1893, the plumber took a note from Hudson at three months’ time for the sum of $543.23. When the note matured, $100 was paid on it by Mr. Hudson, and the note renewed for another three months for .the balance. Twenty dollars has been paid on this latter note, and the remainder is unpaid. When the first note was given, Mr. Hudson had in his hands $508.33, made up of the Mund rent and the May and June rent in advance under the lease to him. There can be no reasonable doubt that these repairs were done with the consent of the owner under chapter 342, Laws 18S5, as amended by chapter 316,' Laws 1888. Burkitt v. Harper, 79 N. Y. 273; Otis v. Dodd, 90 N. Y. 336; Oowen v. Paddock, 137 N. Y. 188, 33 N. E. 154. Mr. Hudson was not a contractor within the meaning of the lien act. He was rather the agent of the owner to make such repairs as he wished to make, but limited, as agent, by the owner, to the .amount of $500. There was no privity of contract between the owner and the claimant, but such privity is not called for by the act under the written consent of the owner.
    The remaining question is whether the lien was filed in time. The lienor had 90 days in which to file the lien from the 3d of June, 1893. On the 29th of September, 1893, Mr. Hudson requested the lienor to put the furnace in order for the winter. This was an old furnace, and needed a water glass, of the value - of 25 cents, which, with the labor, amounted to $1.15. This need was not anticipated when the work was done in the spring, and was not in continuation of any work done upon the furnace then. Mr. Doherty, the lienor, knew of the .$500 limitation, or ought to have known of it. Spruck v. McKoberts, 139 N. Y. 193, 34 N. B. 896. The limitation had been reached before the small charge was made almost four months thereafter, and after the preceding account had been adjusted and settled, and Hudson’s note taken for it. There was, therefore, no continuous contract by which the prior account can for the purpose of filing a lien be deemed as continuous. Duffy v. Baker, 17 Abb. N. O. 357. For the reason, therefore, that as to the old bill the lien was not filed in time, and as to the September item it was not furnished under the consent of the owner, the -complaint should be dismissed, with costs.
    
      ' Argued before GOODRICH, P. J., and CULLEN, BARTLETT, HATCH, and WOODWARD, JJ.
    A. M. & G. Card, for appellant.
    Milton A. Fowler, for respondents.
   PER CURIAM.

Judgment affirmed, with costs, on the opinion of Mr. Justice BARNARD at special term.  