
    Nathan Vosseller, Respondent, v. Bridget Slater, Appellant, Impleaded with Christina McNally.
    
      Mechanic's lien—executoi'y contract for the sale of lands permitting the vendee to move a building —=■ the vendor's interest is not chargeable with a lien for the cost of removing it — application of section 5 of the Mechanics’ Lien Law 0/1885.
    The fact that the vendor in an executory contract to sell and convey land, which gives the vendee the privilege -of removing a huilding situate upon the premises from one part of the .lot to another, but gives the vendor no power to require or prevent such removal, knows that the work of removing and altering the building is going on and does not attempt to stop it, does not constitute such a consent, of the vendor to the doing of the. work as will render the vendor’s interest in the property chargeable with a lien for the labor and materials used in doing the work, under section 1 of the Mechanics’ Lien Law (Chap. 342 of the Laws of 1885, as amended), providing that any person who shall perform labor or furnish material used in erecting, altering or repairing any building, "with the consent of the owner,” shall have, a lien for the price and value of such labor and material to the extent of the interest of the owner.
    Section 5 of said Mechanics’ Lien Law, providing that where “ the owner has made an agreement to sell and convey the premises to the contractor or other person, such owner shall be deemed to be the owner” within the meaning of the act until the deed lias been actually delivered and recorded, does not embrace a case where the owner has, in good faith, contracted to sell and convey the land to a vendee, who has the right of possession of the land under the contract, provided the contract of sale was executed and - possession thereunder was given before the vendee made the contract for constructing and altering the buildings, and provided that the contract does not provide that the vendee shall erect a building upon the premises.
    Appeal by the defendant, Bridget Slater, from a judgment of the' County Court of Erie county in favor of the plaintiff, entered in the office of the clerk of the county of Erie on the 27th day of April, 1897, upon the decision of the court rendered after a trial at an Equity Term of said court adjudging that the plaintiff has a mechanic’s lien on the premises of the appellant and directing its foreclosure.
    This action was begun July 3, 1896, to foreclose an alleged mechanic’s lien.
    In June, 1895, the appellant, Bridget' Slater, was the owner in fee of a lot of considerable size in the city of Buffalo on which -was then standing a small cottage, which was the only building thereon except possibly a barn. In that month she entered into an executory contract with the defendant Christina McNally, by which the former agreed to sell and the latter to punchase the premises for the sum of $4,000, payable $1,000 at the end of thirty days, $1,000 at the end of ninety days, and the remainder, $2,000, to be secured by the bond of the vendee, with a mortgage as collateral thereto on the premises, payable three years after the date of the mortgage, with interest. The contract contains this provision, which is the only one relating to the erection, removal or reparation of buildings by the vendee : “ Said party of the second part shall have the privilege to remove the cottage from where it now stands on said premises to and place the same upon the northeasterly thirty feet of said premises fronting on Delevan avenue.” On the execution of .the contract the vendee entered into possession of the premises, but has never paid anything to the vendor on the contract, and' a few months after its date abandoned it. Shortly after the vendee took possession of the property she entered into a contract with a contractor to remove the cottage from the place where it stood to the place designated in the contract and make certain improvements on the building, for which she agreed to,pay $250. The cottage was removed at an expense of $25. Additional repairs not provided for by the contract were made by the mechanic, worth, according to his evidence, $90. For these amounts the mechanic, on the 31st of August, 1895, filed a lien, in which it was asserted that the appellant was the' owner of the premises. Afterwards the alleged lien was assigned to the plaintiff, who brought this action for its foreclosure, which was tried in the County Court, which found, that Christina McWally was never authorized by the appellant to act as her agent in respect to the alterations made upon the cottage, but found: “Fourth. That, at the time of entering into such contract of sale, it was understood between the defendants hereto that said cottage should be placed upon the rear portion of said premises for the purpose of being used thereon, and that a block of flats was to be built upon the remaining portion of the lot.”
    
      “Ninth. The defendant Slater knew that improvements and alterations were being made upon said premises.”
    As a conclusion of law the court held that the plaintiff had a valid lien on the interests of both defendants, and directed a foreclosure of the alleged mechanic’s lien, with costs, and directed a sale of the premises.
    
      Adolph Rebadow, for the appellant.
    
      George F. Pierce, for the respondent.
   Follett, J.:

Section 1 of chapter 342 of the Laws of 1885 — the Mechanics’ Lien Law (repealed by chapter 418 of the Laws of 1897)-:—pro-vided that any person who shall perform labor or furnish materials used in erecting, altering or repairing any building, “ with the consent of the owner, as hereinafter defined, or his agent,” shall have a lien for the price and value. of the labor performed and materials furnished to the extent of' the right, title and interest at that time existing of such owner, whether owner in fee or of a less estate, or whether a lessee for a term of years, or vendee in possession under a contract existing at the time of the filing of said notice of lien, or of the owner of any right, title or interest in such estate, which may be sold under an execution.” (3 R. S. [9th ed.] 2635.) By the 5th section of the act it was provided: In cases in which the owner has made an agreement to sell and convey the premises to the contractor or other person, such owner shall he ■deemed to he the owner within the intent and meaning of this act until the deed has been actually delivered and recorded, conveying said premises pursuant to such agreement.” (3 R. S. [9th ed.] 2640.)

By virtue of these provisions the plaintiff asserts that his assignor, who performed labor and furnished materials in moving and altering the dwelling upon the property under the contract with the vendee in possession, acquired a lien against the interest of the vendor. The vendee, Christina McNally, who contracted with the plaintiff’s .assignor, did not answer, and does not contest the claim of the plaintiff. Bridget Slater, the vendor of the premises, alone defends and contests the right of the plaintiff to establish a lien upon her interest in the property. The provision above quoted from, the ,5th section of the Mechanics’ Lien Law did not provide for or embrace the case at bar. This provision was not intended to embrace, and does not embrace, the case in which the owner in fee of land has ■contracted in good faith to sell and convey it to a vendee, who has the right of possession of the land under the contract, provided the contract of sale was executed and possession thereunder given before the contract -was made by the vendee for constructing or altering the buildings, and provided the contract of sale does not provide that the vendee shall erect a building on the premises. This provision of the statute was intended to provide for and embrace a ■class of contracts common in the cities of this State, by which the owner of the fee of a lot by an executory contract agrees to sell and subsequently convey it, and by the same contract binds the vendee to erect a building thereon of a prescribed kind and within a time fixed. Such contracts usually provide that the vendor shall advance money to the vendee from time to time as the building progresses to enable the vendee to erect a building, and provides that when the building is completed the vendor shall convey the property to the vendee and take back a mortgage as security for the purchase price of the lot and for the sums to be advanced to the vendee under the contract. (Schmalz v. Mead, 125 N. Y. 188; Miller v. Mead, 127 id. 544.) This provision was brought into the statute in 1863 (Chap. 500, § 14) to avoid the effect of the cases of which Loonie v. Hogan (9 N. Y. 435) and those cases cited in paragraph 72, page 4998 of the 3d volume of Brightly’s New York Digest are types.

There is no provision in this executory contract of sale binding the vendee to remove the cottage, or alter it or repair it. The provision is that the vendee shall have the privilege, of removing the’ cottage from where it stood at the execution of the contract to another part of the lot. The vendee might or might not do it as-she chose. There is no suggestion in the contract that the cottage was to be rebuilt or extensively repaired. The vendor, Mrs. Slater,, had no power to compel the vendee to remove the cottage or to control the vendee as to what repairs should be made upon it, at what expense or by whom. The alterations were not made for her benefit, and, as it turned out, they were made to her great injury, as the undisputed evidence is that the premises as altered were not worth as much as they were before the change, and could not be rented for as much as formerly. The mere fact that Mrs. Slater knew that her vendee contemplated moving and altering this cottage before the contract of sale was entered into, and talked about it with the person who did the repairs, knew that he was going to make them, and knew that he was making them, does not render her interest in the land subject to a lien filed for labor performed and materials furnished. It would be a most unusual statute and of doubtful validity which should provide that, in casé a vendor sells real estate by an ordinary executory contract of sale, knowing that the vendee intended to erect a building thereon, the vendor’s interest should be charged with a lien for the expense'-of erecting a. building, and so improve the vendor out of his estate.

The term “with the consent of the owner,” as used in the statute,, implies that the owner has power to give or withold his consent in respect to the construction, alteration or repaTation of the building.. In case the vendor in an executory contract has no authority to ' recpiire the vendee to build, alter or .repair, and has no power to preven.f Jinn.from doing so, his interest cannot be charged with a mec.higpÍQls-, lien for the erection, reparation or improvement of a builfiing, .ordered by the vendee simply because he (the vendor),, knowing that the work has .to be done and knowing that it is - being done, does not try to stop what he has no power to prevent. (Havens v. The West Side Electric Light & Power Co., 44 N. Y. St. Repr.. 589 ; S. C., 17 N. Y. Supp. 580; affd; 49 N. Y. St. Repr. 771; S. C., 20 N. Y. Supp. 764; Hankinson v. Vantine, 152 N. Y. 20; McCauley v. Hatfield, 59 N. Y. St. Repr. 552; S. C., 28 N. Y. Supp. 648.)

In case an owner of premises has such control over them that he may permit or prevent their improvement by the person in possession, stands by and allows them to be improved, a different question is presented, and the cases arising out of such a state of facts are not germane to the question involved in the case at bar.

It is clear that the plaintiff’s assignor never acquired a legal lien on the interest of the appellant in the land, and the judgment against Bridget Slater should be reversed and a new trial granted, with costs to the appellant to abide the event.

All concurred, except Adams, J., who concurred in the result.

Judgment reversed and a new trial ordered, with costs .to the appellant to abide the event.  