
    Mary R. Schummer, Appellant, v. Mary Clark, Respondent, Impleaded with Albert B. Clark.
    
      Mechanics lien,— work done and materials furnished by direction of, and chwrged to, a husband,, in constructing a house on the wife’s land—when her knowledge thereof is sufficient to charge the land with the payment therefoi'.
    
    In an action brought against a husband and wife to foreclose a mechanic’s lien for materials furnished and labor performed in erecting a dwelling house upon land owned by the wife,, it appeared that the labor and materials were performed and furnished at the request of -the husband, who was a carpenter and builder, and that the value thereof was charged to the husband. It appeared, however, that at the time the labor and materials were respectively performed and furnished, the wife resided close- to the dwelling house and was frequently in such house when the work was in progress and that she actually lived in it when a portion of the materials were installed and that she personally paid twenty dollars on account thereof. There was no pretense that the wife did not know that the labor and materials in question went into the construction of the dwelling house. Both the husband and wife were witnesses on the trial and gave no explanation of their relations, nor did they testify to any facts impugning the authority of the husband to act for the wife.
    
      Held, that it was improper for the trial court to dismiss the plaintiff’s complaint as to the wife;
    That the wife being the owner of the premises and having allowed the improvements to be made, her property was, under the Lien Law, properly chargeable with the payment of the cost of the labor and materials;
    That it was not a controlling circumstance that the labor and materials were charged to the husband instead of to the wife, in the absence of any evidence that he was acting independently of his wife, or by virtue' of any agreement with her whereby he himself was to pay for the. improvements.
    McLennan, P. J., and Stover, J., dissented.
    Appeal by the plaintiff, Mary R. Schummer, from a judgment of the County Court of Erie county in favor of the defendant Mary Clark, entered in the office of the clerk of the county of Erie on the 30th day of March, 1904, upon the decision of the court, rendered after a trial before the court without a jury, dismissing the complaint as to the defendant Mary Clark.
    The action was commenced to foreclose a mechanic’s lien upon property owned by the defendant Mary Clark. The materials were furnished at the request of the defendant Albert B. Clark, the husband of the defendant Mary, and were charged to him, and against him a personal judgment was directed for the unpaid balance, but the complaint was dismissed as to the wife. The husband does not appeal.
    
      ■ Timothy G. Sheehan and Frank C. Brendel, for the appellant.
    : Leroy S. Andrus, for the respondent.
   Spring, J.:

In 1901 the defendant Mary Clark owned premises in the village of Hamburg, county of Erie, and a dwelling house was erected thereon during that year. The plaintiff, a hardware dealer, furnished at the request of the husband a quantity of hardware for the house, did plumbing work and installed a furnace therein and within ninety days after furnishing the materials and the completion of the work filed a mechanic’s lien against the property. The respondent claims that the property is not subject to the lien, alleging ’ that the proof does not show that the husband acted for her or with her consent in purchasing the hardware and furnace of the plaintiff.

The defendants, at the time plaintiff was performing the work and furnishing the materials, resided close by the dwelling. The wife was frequently at the house when the work was in progress, and actually lived in it when the furnace was placed. The premises belonged to her. The husband was a carpenter and builder, and purchased .the furnace and hardware and they were charged to him. They were obtained, however, for the benefit of his wife, and were necessary to the completion of her house and presumably enhanced its value, and she personally paid twenty dollars on the account. There is no pretense that she did not know that the furnace and materials supplied by'the plaintiff went into the construction of the house.

We think she is liable. She was the owner and allowed these improvements to be made, and under the Lien Law her property is chargeable with their payment. (Lien Law [Laws of 1897, chap. 418], § 3 ; National Wall Paper Co. v. Sire, 163 N. Y. 122, 130, 131; Husted v. Mathes, 77 id. 388; Otis v. Dodd, 90 id. 336 ; Gilmour v. Colcord, 96 App. Div. 358, 363.)

There is nothing in the proof to indicate that the husband was furnishing the money to erect this dwelling on his wife’s premises, or that she employed him as a contractor to perform those services. They were witnesses on the trial and gave no explanation of their relations, and it is fair to assume that he represented her because he is her husband and by reason of his calling familiar with the erection of dwellings. They did not testify to any facts impugning the authority of the husband to act for the wife. The real controversy upon the trial was whether the furnace complied with the representations made as to its efficiency, and the court determined that dispute in favor of the plaintiff.

The cases relied upon by the respondent do not meet the situation. In De Klyn v. Gould (165 N. Y. 282) the lessee was charged with the burden of making improvements, and while the lessor knew they were being made there was no intimation that she was to be charged therefor and she had a right to assume that the tenant alone was responsible for them in accordance with the terms of the agreement. In Rice v. Culver (172 N. Y. 60) the lessee in possession removed, as permitted by his lease, buildings upon the property, the owner exercising no supervision over"the work and the removal not inuring to his benefit, but solely to that of the lessee. In Beck v. Catholic University (172 N. Y. 387) the premises were sold under an executory contract and the vendee caused improvements to be made and liens therefor were filed. Upon default in payment the vendor reacquired possession of the property and it was held that there was no consent within the meaning of the Lien Law. These and kindred cases were all disposed of upon certain contractual relations between the parties which prevented the operation of the rule that the owner is liable if he consent to the improvement made. In the present case the only authority which the husband had was derived from the wife, and she knew and acquiesced in the improvements upon her property and they inured to her benefit and she is the only paymaster.

It is not a controlling circumstance that the goods were charged to the husband when it does not appear that he was acting independently of his wife, or by virtue of any agreement with her whereby he was to pay for the improvement and no liability was to attach to her. When it is disclosed that she and not the husband owned the property she ought to be charged with its improvement under the circumstances of this case.

The judgment, so far as appealed from, should be reversed and a new trial ordered, with costs to the appellant to abide the event.

All concurred, except Stoves, J., who dissented in an opinion in which McLennan, P. J., concurred.

Judgment reversed and new trial ordered, with costs to the appellant to abide event upon questions of law and fact.

C-HSJCS DETERMINED IN THE SECOND DEPARTMENT IN THE APPELLATE DIVISION, 1905. 
      
      This opinion will be found on page 631, post.— [Rep.
     