
    THEODORE B. GATES and another, Appellants, v. JOSHUA M. WHITCOMB and others, Respondents.
    When an owner of land agrees to sell it to another, and advances him. money with which to build upon the premises sold, and, after completion of the houses, the builder is to secure the purchase-price and the advances by mortgage, the relation of owner and contractor does not subsist as between the parties, under the lien act  In such cases the person who agrees to purchase, builds by permission of the owner, and the property is chargeable with the lien until the deed is actually delivered, without regard to the terms of the contract of purchase.
    Appeal from a judgment in favor of defendant dismissing plaintiff’s complaint. The action was brought to foreclose a mechanic’s lien.
    
      Theodore B. Gates, appellant, in person.
    
      William W. Goodrich, for the respondents.
    
      
      Hart v. Wheeler, 1 N. Y. S. C. (T. & C.), 403.
    
   Opinion by

Barnard, P. J.

Present—Barnard, P. J., Gilbert and Tappen, JJ.

Judgment reversed and a new trial granted at Special Term, costs to abide event.  