
    Raphael La Pasta, Respondent, v. Samuel Weil et al., Appellants.
    (Supreme Court, Appellate Term,
    June, 1897.)
    1. Mechanic’s lien — Subcontractor.
    A subcontractor cannot recover anything upon a mechanic’s lien filed, by him, where there is nothing due from the owner to the contractor; and in such an action the owner has a right to prove what it cost him to complete work which should have been done by the contractor.
    2. Same — Consent of owner.
    The mere fact that an owner stands by and sees a subcontractor at work does not render his property liable to the subcontractor irrespective of the amount due from the owner to the contractor, and in order that a liability to the subcontractor shall be create»’, there must be some affirmative act upon the part of the owner evidencing some new obligation to the subcontractor, independent of the original contract.
    3. Same — When a subcontractor is put upon inquiry.
    Where a subcontractor knows that the contractor is not the owner of the premises upon which the work is done, the subcontractor is put upon inquiry to ascertain the rights of the contractor.
    4. Same — Personal liability of owner.
    A subcontractor may maintain an action against the owner for work done, where the owner has agreed to be personally liable, but there must be clear evidence of the fact that the owner made such a contract.
    5. Judgment not supported by any evidence.
    Where a judgment is not supported by any evidence, exceptions filed present a question of law which may be reviewed upon appeal.
    La Pasta v. Weil, 20 Mise. Hep. 10, reversed.
    Appeal by defendant Weil from affirmance by the City Court, General Term, of a judgment for the foreclosure of a mechanic’s lien, etc.
    E. Arnstein (A. C. Thomas, of counsel), for appellants.
    Irons & Todd (D. R. Todd, of counsel), for respondent.
   McAdam, J.

The notice filed by the plaintiff to acquire a lien sets forth that the person by whom he was employed, and for whom the work was done, was John McNally, and that the property was owned by Samuel Weil. No reference is in any manner made to any personal claim against Weil. The complaint charges .that the work was done for McNally, and that the latter had a,contract therefor with Weil, so that the action was apparently one by a mechanic to foreclose a subcontractor’s lien,

The owner pleaded nonperformance of the contract by McNally, and that it cost him $5,000 over and above, the contract price to ■complete the work McNally had agreed to perform but left undone.

It is not alleged, nor was it proved that there was any money due from Weil, the owner, to McNally, the contractor; so that there was nothing to which a subcontractor’s lien could attach. Laws 1885, chap. 342, § 1; Lemieux v. English, 19 Misc. Rep. 545; Keavy v. De Rago, 20 id. 105; Riggs v. Chapin, 27 N. Y. St. Repr. 268. Indeed the owner attempted to prove what work was left undone by McNally, under his contract, for the purpose- of showing that there was no .money due to McNally, as contractor, and the evidence was excluded as immaterial.' This ruling was evidently made on the erroneous theory that the owner had in some manner bound himself personally to the_ plaintiff, and having become liable to him as principal the relations between McNally and the appellant were no longer of any significance.

The plaintiff had another theory, for in order to charge the property of Weil, the owner, he alleged that the work was performed by the plaintiff with Weil’s knowledge and consent. But the mere fact that an owner stands by and sees a subcontractor at work' does not render his property chargeable with á lien irrespective of the- amount due to the contractor. The owner certainly consented that all the work necessary-to complete his buildings according to his contract with McNally should be done. Thé contract itself proves that. But whether done by the contractor or persons employed by him the. owner’s liability could not be enlarged beyond the ‘terms of the contract without some affirmative act on his part evidencing some new obligation independent of. such contract.

• The appellant’s position is not to be confounded with that' of an owner whose lessees by his consent make alterations in the premises, for an owner in such a case cannot object that liens are filed against his property for the work so done, and to the full extent of its value, because he must have known that this result would follow, if the mechanics employed to do it Were not paid. Mosher v. Lewis, 14 App. Div. 565; Ross v. Simon, 9 N. Y. Supp. 536. Although where a lease of a building provides that the lessee shall not make any alterations without the consent of the owner, under penalty of forfeiture, a mere general consent of the owner that the lessee in occupation may make alterations at his own expense does, not con- ‘ stitute a consent by the owner that a third party shall furnish labor or materials, so as to make such, labor aud materials the basis of a mechanic’s lien upon the building, especially in the absence of any notice or knowledge on the part of the owner from which such consent can be implied. Hankinson v. Vantine, 152 N. Y. 20.

In this instance it was known that the owner’s consent to do the work was expressed in a written contract which limited the owner’s liability and made any obligation enforcible against him dependent upon performance of that contract as a condition precedent.

The plaintiff knew that MeNally was not the owner of the premises. He was, therefore, put upon his inquiry to ascertain Mc-Ually’s rights as contractor. Hankinson v. Vantine, supra, at p. 31.

Upon the facts stated in the notice of lien and those alleged in the complaint, or even the evidence adduced thereunder, the plaintiff established no right of action against the owner or his property, and we are at a loss to discover any ground upon which the recovery may be sustained.

Upon the trial the plaintiff evidently abandoned all effort to enforce a subcontractor’s lien by claiming a contract directly with the owner, and it was on this theory he succeeded.

The plaintiff testified that in a conversation with the defendant’s agent Meyer, the latter said: When you are ready for the beams, call the architect and measure the extra work; I will pay you.” The plaintiff and McUally were present at the conversation, and what Meyer said was evidently addressed to the contractor, and not to the plaintiff. The conversation was competent to prove that MeUally might have some claim for extra work, to which the plaintiff’s lien might attach, provided the condition was performed and the architect certified to the work. It did not establish that the plaintiff was to have a personal claim against the owner as an independent contractor — a thing not within the contemplation of the parties nor within any issue on trial. The condition was never performed by any one, and the architect’s certificate was never produced or its production in any manner dispensed with.

The plaintiff claims that because on a motion to dismiss the complaint at the close of the case the owner did not particularly specify the reasons why a recovery should not go against him or his property, the appellant is precluded from objecting to the recovery had.

The owner no donbt assumed, as perhaps he might, that if the justice rendered a judgment in favor of the plaintiff it would be against McUally alone, for in no aspect of the case, under the form of the notice of lien filed and the issues created, was á judgment recoverable against or which could affect Weil. Be this as it may, the trial was without a jury; the trial judge filed findings of fact and conclusions of law, and the defendant filed exceptions to such findings and conclusions. These are printed in the case, and constitute part of the papers upon which the appeal from the judgment must Be heard. Code, §§ 992, 994. "As the judgment is destitute, of evidence to support it a question of law is presented by the exceptions filed, which we may review. Healy v. Clark, 120 N. Y. 642; Yale v. Curtiss, 151 id. 607; Bayl. New Tr. 280.

The judgment must be reversed and a new trial ordered, with costs .to the appellant to abide the event.

Daly, P. J., and Bisghoff, J., concur.

Judgment reversed and new trial ordered, with costs to the ap- • pellant to abide event.  