
    Baldassare Milicie, Appellant, v. Charles. P. Pearson, Respondent.
    Second Department,
    January 26, 1906.
    Contract—when sub-contractor cannot assert lien against owner for materials furnishei contractor—waiver of lien.
    A sub-contractor who furnishes materials tea contractor who is under an agree- • ment with the owner of a building-to'.put in trade fixtures, of which agreement the subcontractor had notice, cannot claim a lien on siich materials as against the Owner by reason of a contract with the original contractor reserving title to said materials until payment in case the owner lias paid such contractor in full.
    As such materials w'ere furnished to enable the contractor to perform his-agree- . ment, it is inconsistent with the lién claimed. , •
    ■In any event, when such subcontractor requests the owner to pay the contractor so that the sub-contractor can collect, there is a waiver of -any lien. • .
    Appeal by the plaintiff, Baldassare Milicie, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the'county of Kings on the 24th day of February, 1905, upon the dismissal of the complaint by direction of the court after, a trial at the Kings County Trial Term, and also from an order
    
      entered in said clerk’s office on the 3d day of March, 1905, denying the plaintiff’s motion for a new trial made upon the minutes.
    The defendant was tenant of a store and made a contract with Sielke & Co. for them to fit it up and put trade fixtures in it for a retail tailoring establishment.
    Sielke & Co. afterwards, viz., on March seventh, made a contract with Rieser (plaintiff’s assignor) to do- part of their contract, viz., to put in wall cases, shelves, an arch, a partition with seats in it for customers, dressing rooms, a storage room with a roof over it, a cashier’s office, a partition with mirrors, a mezzanine floor for a bushelman and for ironing and pressing, etc. They were attached to the walls and floor, but could be detached and removed as trade fixtures.
    This contract provided that title to the said fixtures should remain in Rieser until Sielke & Co. should pay him the contract price therefor in full.
    Rieser knew when he made his contract with Sielke & Co. of their contract with the defendant. He put his men in the store and beggn t,o put in the fixtures on May second and finished in or before August.
    On May nineteenth Rieser filed his said contract with the register of the county of New York.
    Sielke & Co. paid Rieser $750 of their contract price with him on May sixth, the whole price being $1,491.50.
    On September fifteenth Rieser assigned the chattels to the plaintiff, who demanded them of the defendant, and on refusal brought this action.
    On May sixth, which was after Rieser had put in a part of the fixtures, and before he filed his contract with the register, he informed the defendant (so he testifies) of his contract with Sielke & Co. by which he retained title until he was paid, but later on, being recalled, he testified that the words he used were that he had a chattel mortgage.
    On July fifteenth Rieser wrote to the defendant he would be glad if he would pay Sielke & Co. so that “ we can collect our money.”.
    
      Paul Armitage, for the appellant.
    
      James B. Kilsheimer [George R. Dutton with him on the brief], for the respondent.
   Gaynor, J.:

The judgment should be affirmed. The plaintiff’s assignor knew that Sielke & Co. had a contract with the defendant to ft up his store and became contractor to .them to .do. part of. that .contract, viz., put in the fixtures in question, which he did. The defendant" had no contract with or obligation to him whatever; he had to pay( and did pay his own contractors, Sielke & Co.. The plaintiff’s assignor knew of the defendant’s contract, with Sielke &. Co. before he made his with them, and agreed with them to furnish, the chattels to be delivered to the defendant under their contract.. He could not retain title under such circumstances. He knew that title was to pass to the defendant. • He furnished the chattels to Sielke & Co. to enable them to perform their contract and part with title to the said chattels to the defendant in order to get paid for them by him. " . .

The researches of counsel have not discovered any case in point, but the case of Fitzgerald v. Fuller (19 Hun, 180) may bear .on the case, and the case of Kerby v. Clapp (15 App. Div. 37, 44) bears on the question.

In the view taken of the case it is not necessary to decide whether the defendant had notice, actual or constructive, before he paid Sielke .& Co., of the clause in the contract of the plaintiff’s assignor with them that title should not pass to them until payment of the contract price. If he had it would' make no difference. . He knew that title was to pass from them to the defendant under their com tract at once, in order that they might fulfill their contract and be paid, therefor,, and delivered the chattels to.enable that to take place. For him to retain a lien on or ownership of the chattels would be antagonistic to this main purpose, they could not. exist, together.

After the bulk of the work or all of it had been done, the .plaintiff’s assignor wrote to the defendant .requesting him to pay .Sielke & Co. so that he could collect of them. If he had any, ownership or lien this was a waiver of it.

The judgment is affirmed.

Present — Jenks, Hookee, Gaynoí, Rich and. .Mieleb, JJ:

.Judgment unániihously.affirmed, with.costs.  