
    Andrew J. Kerwin, Jr., Appellant, v. Alfred Post and American Bonding Company of Baltimore, Respondents, Impleaded with Paul Shotland, Defendant.
    First Department,
    June 14, 1907.
    Beal property — when obligation to repair party wall ceases — mechanic’s lien—pleading — failure to state liability of joint owner.
    The easement of each proprietor in a party wall ceases with the existence of the state of things which created it, and when that has transpired there is no right in one owner, in case the other refuses to co-operate, to rebuild the wall and claim contribution.
    Hence, one who seeks to charge an adjoining owner with a mechanic’s lien for material furnished in rebuilding a' party wall must allege facts which raise an express or implied obligation on the part of the defendant to contribute toward the restoration of the wall. The bare allegation that a party wall existed which needed repair, and which-was repaired-by the plaintiff, is not enough to charge the adjoining owner with liability,, and the complaint fails to state a ■ cause of action.
    Under the Mechanics’ Lien Law as it now exists (Laws of 1897, chap. 418), one who furnishes labor or material for the improvement of real property, upon the proper consent of the owner,, is' entitled to file a lien for ¡such improvements,; there'need not be a formal contract with, the owner. If the circumstances show ¡that the owner consented to. an improvement of his property in the expectation that he Would reap the benefit, the law raises an implied - promise to pay. ■ • , , ,
    Hence, the complaint in an action to foreclose a mechanic’s lien, .which alleges-in- substance that, with the consent of the defendant, plaintiff performed work,, labor and services and furnished-materials of specified value for the repairing of a chimney, etc., on the defendant’s premises, states a cause of action.. Patterson, P. J., and Scott; J., dissented,, with memorandum.
    Appeal by the plaintiff, Andrew J. Kerwin, Jr.,, from a judgment of the Supreme Court in favor- of certain of tile defendants, entered in tlie,office of the cleric of the county of New York on the 18th day of April, 1907, upon the decision of .the court, rendered after a trial at the New York Special Term, dismissing the amended complaint. ,
    wCharles W. Pierson, for the appellant.'
    
      Philip Carpenter, for the respondents.
   Houghton, J.:

The action is brought to foreclose a mechanic’s lien in place of which a bond had been given, and two separate causes of action are alleged in the complaint. ■

• On the trial, before any evidence was taken, the entire complaint was'dismissed on the ground'that neither cause of action stated facts sufficient,to constitute .a cause of action.,'

In the first cause of action it is alleged that the defendant Post was the owner of premises adjoining premises owned by plaintiff between which there ■ was a party wall standing, about one-half on the land of each, and that with the knowledge and consent.of defendant Post-the plaintiff performed work,.labor and services, and furnished- materials in improving, and making safe such wall, which was in a-dilapidated and ruinous condition; that the defendant Post, although knowing of such Condition, refused to contribute one-half the expense of putting the same in repair, and-that plaintiff thereupon incurred all of such expense and filed a mechanic’s lien against defendant’s premises for oné-half thereof.

Eliminating the allegation that' the defendant Post refused to contribute one-half the expense toward repairing - the party wall, and assuming that under some state of facts a mechanic’s lien could be properly filed for repairs made, by one to a party wall which existed for the benefit of both owners of adjoining premises, and giving full force to the allegation that it was repaired with the consent of Post, still we think the facts alleged did not state a cause of action either to foreclose a mechanic’s lien or to obtain a personal judgment against Post. The allegation is simply that there existed a "party wall between the premises which was dilapidated and out of repair.

. The doctrine enunciated in Campbell v. Mesier (4 Johns. Ch. 334), upon which appellant relies, and which holds that where an old party wall exists, between two houses, the owner of one might build a new house on his jot and a new .party wall, and compel the owner of the adjoining house to contribute to the ■ expense in its entirety, in our- opinion, is not now the law óf this State. The decision was expressly disapproved by Deuio, Ch. J., in Partridge v. Gilbert (15 N. Y. 601), who laid down the proposition, that the easement of each' proprietor in a party wall ceases with the existence of the state of things which created it, and that there is no right in either owner, in case, the, other refuses to co-operate, to rebuild the wall and claim contribution. ■ To like effect was Sherred v. Cisco (4 Sandf. 480), which was approved by him. In the latter case the party wall was destroyed by fire and rebuilt by one owner, and it was held that he could not compel contribution from the. other.

The principles upon which that decision was-founded, as well as the reasoning of Denio, Ch. J., in Partridge v. Gilbert (supra), were expressly approved in Heartt v. Kruger (121 N. Y. 386), where it was held that after the destruction of buildings by fire ho right remained in the owner of one lot to rebuild the party wall on both lots as it originally stood. To the same effect is the reasoning employed in Douglas v. Coonley (156 N. Y. 521) and in Schaefer v. Blumenthal (169 id. 221). So far as the allegations disclose, the -party wall may have'become in an “ unsafe,-dilapidated and ruinous condition,” and the buildings' destroyed • from- some outside cause. If the condition arose from such a cause and the buildings on both lots ceased to - exist for that -reason, the right to the party wall ceased, and the owner of one lot could not rebuild it "and compel the owner of the- other lot to- contribute - toward the expense. We think it was incumbent .upon the plaintiff to plead that such state of affairs' did not exist, and to show by his allegations "that a state off affairs did exist which raised an implied obligation on the part of the defendant. Post - to contribute toward the restoration of the wall. The bare allegation that a: party wall existed, which needed repair and restoration, was, not enough to, charge Post with liability to contribute one-half the cost.

• Ho.agreement to contribute toward the repair being. alleged, and the plaintiff not alleging, facts from which one could' be implied, or from which liability cohid be inferred, the court, was correct in dismissing the complaint as to the- first cause of action.

With .respect to the second cause of action we think the com-, plaint should not have been dismissed. The allegations, in substance, are that with the consent of. the defendant Post the plaintiff performed work, labor and services, and furnished" materials for the repairing of the chimney breast and pier and wall qfi- the building on defendant’s premises,-.-of a specified value.’- So far as is alleged, it does not appear that the chimney, pier and Wall were in or connected with the party wall. ■ ", . ' ■

. The respondents.iusist, however, that under the Mechanics’ Lien-Law as it now exists (Laws of 1897, chap. 418), no lien can be had for the improvement. of real property where "labor and materials are furnished for such improvement, upon the mere consent of-the-owner of the premises. The language of the statute is (§ 3): “a • contractor, sub-contractor, laborer or material man, who performs labor or furnishes materials for the improvement of real property with the consent or at the request of the owner thereof, or of his agent, contractor or sub-contractor, shall, have a lien * *

- While-the terms “ contractor,” “ sub-contractor,”. “ laborer ” and “ material man ” refer primarily to the man- who has a formal .contract with the owner, or'a sub-contract with the contractor, or who performs-manual labor or furnishes .material, they also embrace, we . think, the man Who buys the labór and material which .enter- -into the improvement.' The present Lien Law was a codification of the general lien laws of the State, and so far as mechanics’ liens are concerned was a substantial re-enactment of chapter 342 of the Laws of 1885. It is true that this law provided that “ any person * * * who shall hereafter perform any labor or service or furnish any materials ” shall be entitled to a lien, yet it does not appear that" the codifiers, by the designations which they employed, intended to reduce or limit the kind of persons who should be -entitled to a lien for improvements made upon real property. Under the law of 1885 a lien was properly filed" against real property, the owner of which made no formal contract for the improvement, but merely consented that it be done. (National Wall Paper Co. v. Sire, 163 N. Y. 122.)

The liens considered in Rice v. Culver (172 N. Y. 60) and in Beck v. Catholic University (Id. 387) were" filed under the Lien Law of 1897 against owners of premises who were alleged only to have consented to the improvements upon their property. These cases turned on the .character of the consent, and nowhere in their discussion is it intimated that under no circumstances of consent could the lien have been filed, but on the contrary, the whole discussion assumes that the lien could have been properly filed except for the fact that the consents did not meet the legal requirement; and in Rice v. Culver with respect to the work for which one lien was ■ filed, the court says that it" might have been found that the owner “ knowingly suffered beneficial improvements to be made ” upon his land in which case the lien would have been proper.

The section of the statute which we have quoted uses the term “ with the consent ” of the owner, and section 22 of the act provides that it shall be construed liberally.

As we interpret the law, one who furnishes labor or material for the improvement of real property, upon the proper consent of the owner, is entitled to file a lien for such improvements, as well as one who has entered into a formal contract with the owner therefor. The consent of the owner which thus binds him, is one in which the circumstances show that he assented to the improvement of his real property in the expectation, that he would reap the: benefit of it. Prom such a consent the law raises an implied promise to pay. . •

Invoking the. fair intendments of the allegations of the second cause of action of. the complaint, we think sticli a consent is set fortín It is alleged that the defendant Post was the owner of the premises upon which the. lien was filed, and presumptively, therefore, in possession, and that with his knowledge and consent-the work was performed and the material furnished for the repairing of various portions of the building thereon.

■ If these views are correct, the trial court was in error in dismissing. the complaint as to the second cause of action.

The judgnjent should, therefore, be modified by' reversing the .same as to the second cause of action and granting a new trial thereon, with costs to the appellant to abide the event.

McLaughlin and Laughlin, JJ., concurred; Patterson, P.' J., - and S'cott, j., dissented. • "

Scott, J. (dissenting):

. • I dissent. The Mechanics’ Lien Law w’as never intended,-in my opinion, to cover such'a case as is presented by either count of the complaint., The foundation of a lien -must be a debt- created by contract, ,express or implied (Snyder Lien Law [4th ed.], 4), and a merely passive attitude is. not sufficient to charge an owner with liability for work done upon his property. De Klyn v. Gould, 165 N. Y. 282.)

Patterson, P. J., concurred. .

Judgment modified as directed in opinion. Settle order on notice. 
      
       See Laws of 1885, chap. 343, § 1, as amd. by Laws of 1895, chap. 673.—[Rep.
     