
    Andrew Zeigler, Resp’t, v. Letitia J. Galvin, App’lt.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed June 25, 1887.)
    
    1. Mechanic’s lien—Laws 1880, ch. 143—What necessaby to establishment OB BIGHT TO LIEN UNDEB.
    Laws 1880, chapter 143, provide that any person who shall thereafter perform any labor, or furnish any materials which have been used, or are to be used, in building, altering or repairing any house, building, or other improvement upon lands, or appurtenances to such house or building, by virtue of any contract with the owner thereof, or his agent, or with any contractor, or sub-contractor, or any other person contracting with the owner of said lands * * shall * * * have a lien, etc. Held, That under this act in order for a person to acquire a lien, the work must be performed, or the materials furnished, by virtue of a contract with the owner, or his agent, and that it was not sufficient to create the right to such lien that the work was performed, or the materials furnished, with the knowledge and consent of the owner of the premises.
    3. Same—Estoppel—Extent ob.
    That a statement that there was enough due to the contractor upon the work to pay the claim of a sub-contractor who had filed a lien upon the premises, if it operated as an estoppel, did so only so far as it related to the amount due, and did not reach the right to establish and maintain the lien.
    Appeal from a judgment entered upon the decision of the Erie county court.
    
      Nathaniel W Norton, for resp’t; William L. Marcy, for app’lt.
   Haight, J.

This action was brought to foreclose a mechanic’s lien. The defendant, Letitia J. Galvin, was the owner of a house and lot in the city of Buffalo. About the-month of August, 1884, her husband, Michael J. Galvin, entered into a written contract with one Michael Galvin, a. contractor, to make certain repairs and improvements upon the house. The plaintiff, a sub-contractor, filed a fien and brought this action to recover the amount alleged to be due from the contractor to him. The trial court found as facts that the contract was made by her husband with her full knowledge, consent and approval, and in pursuance of her desire that more room should be added to the house; that-the contract was intended, and did improve and benefit the property, and that she knew of the contracts and improvements being made at the time they were made, and was desirous that they should be made; that at the time-of making the contract, her husband resided upon the premises with her and his family, which he wholly provided for and maintained, and that she had no separate-business or income, nor did she assume or promise personally to pay any part of the consideration in the contract for the improvement of the premises; that her husband in fact-intended to carry out the contract himself, and to pay the-consideration therein named, to the contractor, according to the terms of the contract, and that she did not expect or intend to pay any part thereof herself.

As conclusions of law, the court found that her husband was her agent in fact, and that the plaintiff was entitled to a judgment establishing his lien upon the premises for the sum his due, and that he was entitled to judgment that the property be sold, etc., to satisfy the same.

Upon the facts found we must differ with the trial court -as to its conclusion “that her husband was her agent in fact.” Her knowledge, consent and approval that the improvements should be made, standing alone,' is not sufficient to constitute an agency.

The trial court, as we have seen, has expressly found that her husband made the contract himself and intended to carry it out and pay the consideration named to the contractor, and that she did not expect or intend to pay any part thereof.

It appears to us that this finding is inconsistent with the-theory that she was acting as principal and her husband as. agent. For if her husband was agent and she principal, then she would become bound by the contract, and would be obliged to pay the amount that became due thereon, and. the same could be enforced against her. The fact that she did not expect nor intend to pay herself, and that her husband did, tends strongly to show that the husband contracted as principal and not as agent.

This is further evident from the other finding to the-effect that the husband resided upon the premises with his family, which he wholly provided for and maintained, and that she had no separate business or income. If she had no separate business or income, she may have had nothing with which she could pay the contractor, and the necessary consequence would be the sale of her premises to pay the -debt. Her husband, living with, her upon the premises, had the right, with her consent, to rebuild and improve the-same, at his own expense, for his own comfort and convenience and that of his family; he had the right to so contract and bind himself without involving his wife.

This view leaves but one other question necessary for our determination, and that is, whether or not a contractor or sub- contractor can establish a lien for work performed and material furnished when there is no contract on the part of the owner or his agent, but where the work performed and material furnished is with the knowledge and consent of the owner.

Chapter 143 of the Laws of 1880, under which the hen in question was filed, provides as follows:

“Any person who shall hereafter perform any labor or furnish materials which have been used or are to be used in building, altering or repairing any house, building or other improvement upon lands or appurtenances to such house or building by virtue of any contract with the owner thereof, or his agent, or with any contractor or sub contractor, or any other person contracting with the owner of such lands * * * . shall * * * have a hen,” etc.

It wifi be observed that under this act, in order for a person to acquire a hen, the work must be performed or the materials furnished by virtue of a contract with the owner or his agent This act is local and is hmited to the city of Buff aid

Chapter 305 of the Laws of 1844 provided:

"Any person who shah hereafter, by virtue of any contract with the owner thereof or his agent, or any person, in pursuance of an agreement with any such contract or * * * shah * * * have a hen.”

The words: “By virtue of any contract with the owner thereof or his agent,” are identical with those appearing in the act under consideration Under the former act these provisions were considered in the case of Jones v. Walker (63 N. Y., 612), in which it was held that no hen could be perfected for the reason that the work was not performed or material furnished under any contract with the owner or his agent. The case resembles the one under consideration; the wife was the owner of the premises; she resided with her husband in the house; the husband maintained the family; it did not appear that he had any other property or income or that she assumed to pay any of the charges in respect to the premises; the contract was made-with her husband, all as in the present case.

In the case of Cornell v. Barney (94 N. Y., 394), the action was to foreclose a mechanic’s lien in the city of New York. The statute applicable to that city provided that-every person performing labor upon or furnishing materials to be used in the construction, etc., of any building shall have a lieii, etc., where done or furnished at the instance-of the builder or his agent. In that case it was held that no recovery could be had against the owner, for the-reason that the work was not done or material furnished at his instance or that of his agent.

The language of the statute in that case is also similar to the one under consideration, and it appears to us that these authorities must be controlling upon the question.

We have not overlooked the cases of Otis v. Dodd (90 N. Y., 336), Burkitt v. Harper (79 N. Y., 273), Husted v. Mathes (77 N. Y., 388), and kindred cases, in each of which the statute provided for a lien where the work was performed or the material furnished, with the consent of the owner, and for this reason they are distinguished, from the case of Jones v. Walker, to which we have referred upon the ground of the difference in the statutes under which the Hen was sought to be perfected.

It is contended on the part of the respondent that the appellant had a conversation with one of the plaintiff’s-attorneys, just prior to the HHng of the lien, in which she stated that there was enough due upon the contract with the contractor to pay the claim of the plaintiff, the subcontractor, and that she is now estopped because of this, conversation. But the estoppal, if any, would only go to the question as to the amount due upon the contract, and does not reach the question as to the right of the plaintiff to establish, and maintain a Hen. We are aware that this conclusion may result in a loss to the plaintiff and seem a hardship, inasmuch as her property has been benefited by the plaintiff’s labor; but this reason cannot change the effect of the statute or be considered in construing the same. Contractors and sub-contractors must conform to* its provisions, for they cannot be changed to meet the exigencies in individual cases. The wife who has a homestead coming to her through her mother (as in this case), may be willing, even pleased, to have her husband repair and improve the same, and yet, if she has no income or resources with which she can pay for the repairs or improvements, she might not have consented or be wiUing that they should be made if, in order to pay for the same, she-had to submit to a sale of her homestead.

The judgment should be reversed and a new trial ordered, with costs to abide the event.

Smith, P. J., and Bradley, J., concur.  