
    Louis Rossi, Resp’t, v. Thomas Mackellar et al., App’lts.
    
      (New York Common Pleas, General Term,
    
    
      Filed April 6, 1891.)
    
    Mechanic’s lien—Laws 1885, chap. 342.
    Where a mechanics’ lien is claimed under chap. 342, Laws of 1885, against the owner of land it must appear affirmatively that the services, etc., were performed at the request of said owner or his agent, or that' the owner, or some person contracting with him for the work, or a person acting under or at the request of the person so contracting with the owner, consented to the performance of such services or the furnishing of such materials; otherwise the owner cannot he charged.
    Appeal from judgment of foreclosure and sale in an action to foreclose a mecanic’s lien against contractor and owner, filed under the provisions of chap. 342, Laws of 1885.
    
      J. F. Harrison, for resp’t; George M. Mackellar, for app’lts.
   Bischoff, J.

Where a lien for unpaid services or materials is claimed against the interest of the owner upon whose land the improvements were made, it must affirmatively appear either that such services were performed or that such materials were furnished at the request of the owner or his agent, or that the owner or some person contracting with him for the making of the improvements, or a person acting under or at the request of the person so contracting with the owner, consented to the performance of such services or the furnishing of such materials, and in the absence of such a request or consent the interest of the owner of the land is not chargeable. Chap. 342, Laws of 1885, § 1; Nellis v. Bellinger, 6 Hun, 560, approved in Otis v. Dodd, 90 N. Y., 336, and in Schmalz v. Mead, and Wood v. Mead, decided by the court of appeals, January 13, 1891; 34 N. Y. State Rep., 779.

From the decision of the learned trial justice upon which the judgment appealed from was entered, it appears that the defendant Mackellar was the owner of certain lands situate on the corner of One Hundred and Seventh street and Fourth avenue, which he had agreed to sell to the defendant, Susan M. Sharkey, and that pending the performance of the executory agreement of sale she was let into possession, but it does not appear that such possession was accorded to enable her to undertake the improvements. The decision is silent as to any request of or consent by Mackellar, and omits to state that Mackellar contracted with any person for the erection of the buildings in and about which the plaintiff’s services were performed. The facts found were, therefore, wholly insufficient to support the conclusion that the land was chargeable with the amount found due the plaintiff from the defendant, Susan M. Sharkey.

For the purpose of upholding a judgment the appellate court may, in the absence of an express finding of a fact material to the recovery, presume that such fact was found and duly considered by the trial court, Meyer v. Lathrop, 73 N. Y., 315, but this presumption can only be indulged in when the case discloses sufficient evidence to warrant such a finding, Oberlander v. Spiess, 45 N. Y., 175, and if none of the evidence appears in the case it may be presumed to have been sufficient. Phillip v. Gallant, 62 N. Y., 256, 265. An examination of the evidence, so far as it has been presented to us upon this appeal, reveals its total insufficiency to support a finding that the defendant Mackellar or his agent or any person contracting with him for the erection of the buildings or any person acting under the person so contracting with the defendant Mackellar consented to the performance of plaintiff’s services. And the stipulation in the case that the omitted testimony relates only to the matters embraced within the first, second, third, fifth and seventh findings of fact, and the first and. fifth conclusions of law, neither of which are excepted to, precludes us from saying that there may have been sufficient testimony upon the trial to have authorized the finding of the request or consent requisite to the validity of plaintiff’s lien.

The j udgment appealed from must be reversed and a new trial ordered, with costs to abide the event.

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