
    Charles A. Cowen et al., App'lts, v. Margaret Paddock, Impl'd, Resp't.
    
      (Court of Appeals,
    
    
      Filed February 7, 1893.)
    
    1. Mechanics’ lien—Consent oe owneb.
    A non-resident owner of real estate made a contract for its sale to W., but gave him no right to possession until he had 'paid $80,000. W. entered without permission and began making excavations, upon discovering which the owner forbade the cominuance of the work. Upon W.’s paying $5,000 she consented that he might finish the excavation, but refused to permit him to go further until the balance was paid; but subsequently W. continued his work and built the walls, etc. Plaintiff filed a mechanic’s lien for work done and materials furnished long after W. was in default and his contract forfeited. Held, that the lien could not be sustained.
    8. Same.
    The facts from which the inference of an owner’s consent may be drawn must be such as to indicate at least .a willingness on his part to have the improvements made, or an acquiescence in the means adopted for that purpose, with knowledge of the object for which they are employed.
    Appeal from judgment of the supreme court, general term, first department, affirming judgment entered on the report of a referee in favor of defendant Paddock.
    
      Henry G. Atwater, for app.’lts;
    
      Charles Hdward Souther, for resp’t
   Per Curiam.

The plaintiffs brought this action to foreclose three several mechanics’ liens upon premises owned by the defendant, respondent, at the corner of One Hundred and Twenty-fourth street and Seventh avenue in New York city. The notice of lien of the plaintiff Cowen specified labor done and materials consisting of cement, broken stone, building stone, brick, blue stone and. granite furnished in the erection and construction of the concrete bases, foundations, foundation walls, vaults and stone plates of the Mew West End Theater building; that of the plaintiffs Post, and McCord, iron beams, tie rods and anchors for the vaults; and that of the plaintiff, Griebel, the preparation of the plans, drawings and specifications for the entire building, and for extra work and services as an architect. The total of the three claims is $14,454. Mo privity of contract between the plaintiffs and the respondent is shown or claimed. It is sought to charge her property with this liability solely on the ground that the work was done and the materials furnished with her. consent. Each of the notices of lien states that the work was done and the materials furnished for the defendant, Allen II. Wood, and that he held a contract for the purchase of the premises from the respondent. They all aver that he entered into and took possession thereof and built thereon with her consent.

The cause was tried before a referee, and when the plaintiffs announced that they had introduced all the evidence they intended to offer upon this branch of the case, the respondent moved that the complaint be dismissed as to her, for the reason that it did not establish such a consent on her part to the performance of the work and the furnishing of the materials as would.render her or her property liable therefor under the Mechanics’ Lien Law, which motion was granted, and the plaintiffs excepted Mo findings of fact were made by the referee or proposed by either party.

The referee filed a report consisting of a recital of the proceedings before him with his conclusions of law, which were that the plaintiffs had failed to prove or establish .either of the causes of action set forth in the complaint, and that the motion of the respondent to dismiss the complaint should be and was granted, and that she was entitled to judgment dismissing the complaint with costs, which was thereupon entered, and from an order of the general term affirming the same this appeal has been taken.

In this condition of the record the dismissal of the complaint must be deemed equivalent to a nonsuit, and to maintain the judgment the respondent must show that a finding by the referee that the work was done and the materials were furnished with her consent would have been so destitute of sufficient evidence to support it that it would, as matter of law, have been error. Place v. Hayward, 117 N. Y., 487; 27 St. Rep., 710. There is no material conflict in the testimony, and it was of such a character that we think a finding that the improvements set forth in the complaint were made with the consent of the respondent would have had no competent proof to sustain it.

. It is admitted that all the work was done and materials furnished under contracts made between the plaintiffs and the defendant Wood, and that the plaintiffs did not know the respondent or her agents in these transactions, and did not have any communications or dealings with her or them upon the subject. If she is to be held liable, it must be upon the ground that she in some manner assented to, or acquiesced in, what Wood did, or caused to be done, upon the premises. But the proof is all one way, that when she discovered he was at work upon the lot, she objected and insisted that the work must stop until he had performed the contract of purchase on his part, and had become entitled to a deed of the property and to its possession. Her agreement with Wood gave him no right to the possession until he had paid $20,000; $5,000 down and $15,000 at the expiration of two months from the date of the contract, when a deed was to be given, and a mortgage executed for the balance of the consideration. Until these things were done Wood had no ownership or control of the property, and no authority to create a charge thereon by the employment of labor or the purchase of materials for its improvement, except to the extent of his interest as vendee.

It is obvious that the respondent and her attorneys understood that if she consented to the performance of any work or the furnishing of materials for the erection of buildings on the lot, before the execution of the deed to Wood, and of his mortgage to her, the parties making the improvements might acquire a lien which would be superior to her title, and to any mortgage which she might subsequently take from him under his contract. She manifestly intended to prevent the occurrence of such a result. The premises consisted principally of a vacant lot, and when Wood went upon it some two weeks after the contract was executed, and before the first payment of $5,000 had been made, and commenced the work of excavation for the foundation walls of the building, it does not appear that he had any permission from the respondent to do so, but on the contrary it is shown that when she discovered he was there and had begun the excavation for the foundation of the building she forbade the continuance of the work. Subsequently the $5,000 payment was made, and there is some evidence that she then consented that he might finish the excavation; but the proof is very clear that she declined in the most emphatic terms to permit him to go any further, until the $15,000 payment had been made as agreed. The plaintiffs’ claims are not for excavating, but for work done and materials furnished after May 1st, and long after Wood was in default, and his contract had become forfeited.

While it is doubtless true that the consent required by the lien law need not be expressly given, but may be implied from the conduct and attitude of the owner with respect to the improvements which are in process of construction upon his premises; still the facts from which the inference of a consent is to be drawn must be such as to indicate at least a willingness on the part of the owner to have the improvements made, or an acquiesence in the means adopted for that purpose, with knowledge of the object for which they are employed. Schmalz v. Mead, 125 N. Y., 188; 34 St. Rep., 779; Miller v. Mead, 127 N. Y., 544; 40 St. Rep., 177; Otis v. Dodd, 90 N. Y., 338; Burkitt v. Harper, 79 id., 273; Husted v. Mathes, 77 id., 388; Nellis v. Bellinger, 6 Hun, 561.

No element of consent of this kind can be found in the present case. The respondent was not willing to have anything done upon the lot until the purchaser had performed the contract and obtained the title, and she never by any act or omission to act acquiesced in his" assumption of authority over the property. On the contrary, she protested vigorously and repeatedly against his unauthorized and unlawful entry upon and occupation of the premises. She might have lawfully ejected him as an intruder; but she was not bound to do so, and her failure to resort to such a measure of protection did not expose her to the peril of a responsibility which can only arise where it is shown that she consented either expressly or tacitly to the use which he was making of her property. It was sufficient if she at all times and in all reasonable ways repudiated his action, and refused to recognize his right to cause the improvements to be made.

The title was doubtless a matter of public record, and the plaintiffs had constructive, if not actual notice of its existence, and all persons dealing with the purchaser, Wood could have readily ascertained by inquiry of the respondent whether she had given her permission to the performance of the work and the use of the materials for which it is now sought to make her liable.

The order and judgment should be affirmed, with costs.

All concur. 
      
       Affirming 43 St. Rep., 342.
     