
    The Mitchell Vance Co., App’lt, v. Mina Daiker, Impl’d, Resp’t.
    
      (New York Common Pleas, General Term,
    
    
      Filed June 6, 1892.)
    
    Mechanic’s lien—Owner.
    Defendant contracted to purchase certain premises with the gas fixtures, which were to be supplied by the vendors. At the request of the vendors plaintiff furnished such gas fixtures and completed the work before, but did not file a lien until after the premises were conveyed to defendant. Held, that defendant was not the owner of the property within the meaning of the statute and could not consent as such; that her interest during the progress of the work was that of a mere vendee, and that the lien was not effective against her.
    Appeal from a judgment of the district court in the city of New York for the third judicial district, dismissing the complaint against the defendant Daiker, in an action brought for the foreclosure of a mechanics’ lien, claimed pursuant to the nrovisions of chap. 342, Laws of 1885.
    
      James S. Stearns, for appl’t; Joseph Fettretch, for resp’t.
   Bischoff, J.

Except in a case of manifest injustice this court will not reverse the judgment of a district court on questions of fact which were determined upon conflicting evidence; and, for the purposes' of this appeal, therefore, we must assume that the justice below determined the fact of defendant Daiker’s oral consent to the performance of the services and the supply of the materials for which the lien was claimed against the appellant and in favor of the respondent. Weiss v. Strauss, 39 St. Rep., 78.

The facts undisputed, however, on the trial, and upon which appellant predicates its claim that the dismissal of the complaint against the defendant Daiker was error, were: that on Septem ber 6th, 1890, defendants Burchell and Hodges were copartners in business, and joint owners of the premises 1384 Amsterdam avenue in the city of ¡New York; that on the day mentioned they entered into an agreement in writing for the sale and conveyance of the premises, inclusive of the gas fixtures then remaining to be supplied, to the defendant Daiker; that after the making of that agreement, plaintiff, at the request of Burchell & Hodges, and upon their promise to pay therefor, equipped the premises with the necessary gas fixtures, and in so doing rendered services and furnished materials of the aggregate value of one hundred and nine dollars and nine cents ; that such services and materials were not fully rendered and furnished until ¡November 7th, 1890; that on October 28th, 1890, Burchell conveyed his interest in the premises to his partner Hodges who, by deed dated and recorded Movember 11th, 1890, conveyed the entire premises to defendant Daiker, and that on December 3rd, 1890, plaintiff caused its notice of lien to be filed against defendants Burchell, Hodges and Daiker, of which notice was given to each of them within the time required by law.

The fact -that the agreement between Burchell & Hodges and Daiker, for the sale of the premises to the latter, required the vendors to supply the gas fixtures intended for use therein, is relied upon by appellant as evidence .of defendant Daiker’s consent to the performance of the services and the supply of the materials above mentioned, within the meaning of the Mechanics’ Lien Law (Laws of 1885, chap. 342).

Assuming that the defendant Daiker did consent to the supply of the gas fixtures by the plaintiff, still it does not follow that the notice of lien was effective as against her. Section 1 of the Mechanics’ Lien Law referred to defines the “ owner,’’ upon whose consent to the performance of the services, or the supply of materials, a valid lien may be acquired for the amount due therefor, to be either the owner of the fee, or of a less estate, or a lessee, for a term of years, or a vendee in possession under a subsisting contract of sale, or the owner of some right, title or interest which may be sold under execution, and the undisputed facts, stated above, fail to show that defendant Daiker was either. The owners of the fee, at the time when plaintiff’s services were performed or its materials furnished, were Burchell & Hodges, and defendant Daiker’s interest in the premises was that of a mere vendee, which could not be sold under execution, Bates v. Lidgerwood Mfg. Co., 20 St. Rep., 778; Higgins v. McConnell, 56 Hun, 277; 30 St. Rep., 958, and it does not appear that defendant Daiker was in possession.

Rollins. Cross, 45 N. Y., 766; Otis v. Dodd, 90 id., 336, and Schmalz v. Mead, 125 id., 188; 84 St. Rep., 779, cited by appellant are not authority for the claim made for it on this appeal. Hollin v. Cross was the case of a lien claimed under Laws 1862, chap. 478, which did not define the owner ” whose interest could be subjected to the lien, and no more was held than that a vendee in possession at the time services were performed and the materials furnished and who subsequently acquired the fee was an “ owner ” within the meaning of that act. In Otis v. Dodd it appeared that the owners of the land had leased it to another who pursuant to the terms of the lease was required to build and it was held that the owner’s consent to the performance of work upon the building sufficiently appeared from the lease. So in Schmalz v. Mead the owner of the land had agreed to sell it under a contract by which the vendee was entitled to possession and required to build before he should become entitled to the delivery of the deed of conveyance to him, and the court decided that the facts established the owner’s consent to the performance of work upon the buildings which the vendee had undertaken to erect.

Section 5 of the Mechanics’ Lien Law (Laws 1885, chap. 842) still further provides that the owner who has made an agreement to sell the premises shall for the purposes of the act continue to be the owner until the actual delivery of the deed to the purchaser. Thus, Burchell and Hodges were the owners up to October 28th, and from that time Hodges up to November 11th, when defendant Daiker became the owner by delivery and record of the deed to her. Hence, defendant Daiker could not in the sense of “ owner ” have consented to the performance of services and the supply of materials by plaintiff prior to the time she became such.

The judgment appealed from should be affirmed, with costs.

Daly, Ch. J., and Pryor, J., concur.  