
    Benjamin F. Jackson, Plaintiff, v. Andrew Egan and Others, Defendants, Impleaded with George Robins and Brooklyn Builders’ Supply Company, Appellants, and Albert W. De Long, Respondent.
    Second Department,
    May 26, 1910.
    Mechanic’s lien—material men and contractors defined — agreement to furnish material and use it in construction —priority of liens.
    If a person who furnishes material for the improvement of real property further agrees with the owner to use that particular material in the erection of any structure upon the lands, he ceases to be a material man and becomes a contractor. '
    A mechanic’s lien filed by a material man is superior to a prior lien filed by a contractor; and the lien of a material man has priority over the liens of other material men subsequently filed.
    Thomas, J., dissented, in part, with opinion.
    
      Appeal by the defendants, George Robins and another, from an order of the Supreme Court, made at the 'Kings County Special' Term and entered in the office of the clerk of the county of Kings on the 14th day of September, 1909, overruling the said defendants’ objections to the report of a referee, and also from an order entered in said clerk’s office on the 6tli day of October, 1909, confirming the said report.
    
      Herbert Reeves [(7. <3. Van VaTkenburgh with him on the brief], for the appellant George Robins.
    
      W: G. Damron, for the appellant Brooklyn Builders’ Supply Company.
    
      Mortimer M. Menken [Howard T. Gole with him on the brief], for the respondent.
   Pee Cubiam :

While injustice may result from affirming these' orders, we can see no escape therefrom. The statute relating to mechanics’ liens defines the words “ material man ” and “ contractor.” (Lien Law [Gen. Laws, chap. 49; Laws of 1397, chap. 418], § 2, revised into Lien Law [Consol. Laws,.chap. 33: Laws of 1909, chap. 38], § 2.) If we transpose the order in which thes.e definitions appear therein, it may assist in understanding it. The term material man “ means any person other than a contraetor who furnishes material” for the improvement of real property. This would indicate that a person who furnishes material may, under certain circumstances, be a contractor. The term contractor “ means a person who enters into a contract with the owner of real property for the improvement thereof.” Therefore, if the person who furnishes material also agrees with the owner of real property to use that particular material in the erection of any structure upon it, he ceases to be simply a material man and becomes a contractor. We do not claim that this exhaustively points out the difference between these two classes, but it is sufficient for the purposes of this. case. De Long and the Brooklyn Builders’ Supply Company were, therefore, material men, and Robins- was a contractor. As De Long’s lien was prior in point of time to that of the Brooklyn Builders’ Supply Company, he is entitled to the surplus, money -as against it, and because he is a material man and not a contractor he has a preference over Eobins, notwithstanding Eobins’ lien was prior in point of time to his.

Hirsohberg, P. J., Jenks,' Burr and Carr, JJ\,

concurred; Thomas, J., read for affirmance of the order of September 14, 1909, and for reversal of the order of October 6, 1909.,

Thomas, J.

(dissenting, in part):

Egan, owner, for the purpose of improving his premises by building thereon five houses, made a contract in writing with defendant Eobins to furnish and to install the plumbing material. In priority of time this is concededly the first lien. De Long submitted a written proposal, accepted by Egan, to furnish you material, enumerated below, for the five 2-story brick houses being erected by you on the North side of 41st Street East of 14th Avenue, Brooklyn, according to plans.” Thereupon follow descriptions of materials, identified by names, sizes, and to a large extent adaptation and proposed locations, and a gross sum in payment is stipulated; and then is added, “ we will not ask you to make separate payments for each house, but as the work progresses.” The proposal was submitted after necessary examination of the plans, but not the specifications. The Brooklyn Builders’ Supply Company furnished brick, lath and similar materials by sending same from day to day at quoted prices. The plans were not consulted by it. The referee and court decided that Eobins’ lien was deferred to the others, as he was a contractor, and that De Long’s lien was preferred to that of the supply company as it was not based on a contract for the improvement of the property, and was prior in time to that of the supply company, whose status was otherwise similar to it. Eobins and the supply company appeal.

The essential question is whether De Long entered into a contract for the improvement of the property. If he did, his lien is subject to the lieu of the supply company. The question involves a critical study of an obscure statute. Why does Eobins’ lien rest on contract for improvement, and De Long’s not ? The similarities and dissimilarities may be traced. Both are in the form of written proposals accepted. Both stipulate for furnishing enumerated materials for specified houses. Both describe the materials in part, identify them by names and sizes, and to some extent state or indicate their location in the house. Both agreements provide for payment as the work progresses. ..The De Long contract in addition provides for “ payments to b.e made per house as follows.” Both vendors were informed by the plans. The single mentionable dissimilarity. is that Bobins agreed to' install his material. Therefore, the inquiry is narrowed to this, does such a contract for supplying, without installing, materials for ■ houses leave De Long merely a preferred material man, or does it reduce his lien to the priority of a mere contractor ? The' Lien Law (Consol. Laws, chap. 33 [Laws of 1909, chap. 38], § 56; re-enacting Code Civ. Proc. § 3414) provides : “ When a laborer or a material man shall perform labor or furnish materials for an improvement of real property for which he is entitled to a mechanic’s lien, the amount due to him shall be paid out of the proceeds of the sale of such property under any judgment - rendered pursuant to this article [title], in the order of priority of his lien, before any part of such proceeds is paid to a contractor or subcontractor.” To understand "better this section, the statutory definitions of “ contractor,” “ material man ” and “ improvement ” must be in mind. The Lien Law (Glen. Laws, chap. 49 [Laws of 1897, chap. 418], § 2; revised into Consol. Laws, chap. 33 [Laws óf 1909, chap. 38], § 2) provides: “ Contractor. The term ‘ contractor,’ when [so] used in this chapter, means a person who enters into a contract with the owner of real property for the improvement thereof. * * * Material man. The term ‘material man,’ when [so] used in this chapter, means any person, other than a contractor, who furnishes material for such improvement.” “Improvement. The term ‘ improvement,’ when. [so] used m this chapter includes the' erection, alteration or repair of any structure upon, connected with, or beneath the surface of, any real property and any work done upon such property, or materials furnished for its permanent improvement.” So it is learned that a contractor is “.a person who enters into a contract with the owner of real property for the improvement thereof.” Improvement in legal meaning equals also “ materials furnished for its permanent improvement.” Therefore, a person “ who enters into a contract with the owner of real property” for furnishing-materials for its permanent improvement is a contractor under the statute. By such definition De Long was a contractor. It cannot be that labor supplied is the essential of the contract, for as seen, “ erection, alteration or repair of any structure upon * * * and any work done upon such property” is “improvement,” “ or materials furnished for its permanent improvement” is such “ improvement.” Why exclude the words as to materials, expressly disjoined by “ or ” from words that describe acts that involve labor alone, or labor joined to furnishing materials? “A” may contract to erect, alter or repair a structure, furnishing, or not furnishing the material, or to do any work thereon, or to furnish materials therefor, and in either case he contracts for the improvement thereof. Of course, if what .De Long furnished was not for the improvement of the property, he would have no lien, and when he specifically contracts to furnish the material for the houses he becomes a contractor. He looked over the plans. He contracted in effect to sell to the owner for the erection of the houses material needed therefor, of sjDecified description, “all for the sum of” $540. It is not a case of giving prices, as did the supply company, and leaving the owner to take when he wills, and in such quantities as he wills, or not at all if he so wills, but an absolute undertaking to furnish'materials for specified houses “being erected,” at a stated sum to be j>aid “ as the work progresses.” Every person who agrees to work on a building or to furnish material to be used in such building makes a contract for the work or material. But he does not necessarily undertake the improvement of the building in whole or in part; he does not assume the burden of furnishing the material for its construction. He may aid indefinitely. Here De Long definitely undertakes to aid specified buildings by definite terms specifically related to the erection of the houses, and his payments are measured in time by the progress of the building, to which progress he has agreed to contribute. The work in a measure depends upon his promised participation in it. Certainly he could not by his default defeat such progress and still demand absolute payment. He conditioned his payment by its interdependence with the work. The preferred class is dissociated from such relation and resultant responsibility. In Herrmann & Grace v. City of New York (130 App. Div. 531) the American Radiator Company was considered a material man, as' it furnished radiators to a company that had contracted to furnish and install radiators. Hedden Construction Co. v. Proctor & Gamble Co. (62 Misc. Rep. 129) presents the case of a company selling lumber to a contractor. The company knew the destination of the material and probably upon whose contract it was supplied. In neither case was there any privity with the building undertaking or with the owner. The order of liens is as follows: First-, The Brooklyn Builders’ Supply Company ; second, defendant George Robins; third, Albert W. De Long.

The order of September 14, 1909, should be affirmed, the order of October 6, 1909, should be reversed, with ten dollars costs and disbursements to the Brooklyn Builders’ Supply Company against the respondent, and the moneys directed to be applied, first, to payment of lien of the Brooklyn Builders’ Supply Company, and the balance to apply on the lien of George Robins.

Orders affirmed, with ten dollars costs and disbursements.  