
    NEW YORK COMMON PLEAS.
    The Hazard Powder Company agt. Matthew Byrnes and others.
    Where a building contract (in the city of New York) requires the rock upon the land to be blasted and removed, preparatory to building, powder and fuses necessarily used for that purpose come within the term e< materials in building,” within the meaning of the lien law of 1851.
    
      New York Special Term, June, 1861.
   Hilton, Judge.

The plaintiffs seek to acquire a lien upon the premises situated on the corner of Third avenue and Thirty-seventh street, belonging to the defendant Byrnes, for powder and fuses furnished to the defendant Kingsly, who contracted with Byrnes to erect buildings on the premises described.

It is conceded that the building contract required the rock upon the land to be blasted and removed by Kingsly, to enable him to lay the foundations for the buildings; and that the only question to be determined is, whether the powder and fuses necessarily used by Kingsly in blasting the rock, and furnished to him for that purpose by the plaintiffs, are “ materials in building,” within the meaning of the lien law of 1851, and for which the party furnishing may acquire a lien upon the building, as against the owner, to the extent of the moneys remaining in his hands belonging to the contractor.

The lien law provides that any person who shall, in conformity with the terms of the contract between the owner and contractor, furnish to the contractor any materials in building, altering or repairing any house or building or appurtenances thereto in the city of New York, shall, upon filing the required notice with the county clerk, have a lien upon such building or appurtenances, and upon the lot of land on which the same stands, to the extent in the act specified. (See laws of 1851, ch. 513, §§ 1, 6.)

I think the fair and reasonable interpretation of such language is, that the right of lien extends to all such materials as ordinarily enter into or are used in the construction of buildings, and which are within the express or implied terms of the building contract made between the owner and contractor.. (Wood agt. Donaldson, 17 Wend., 550; McDermott agt. Palmer, 4 Seld., 383.)

Here the contract imposed upon the builder the duty of removing rock from the surface of the land preparatory to laying the foundation walls, and hence the powder and fuses furnished became necessary for the purpose of blasting the rock and enabling the contractor to construct the contemplated building. Such materials, when thus impliedly contracted for, and actually furnished and used, must, I think, be classed within the list of things which are denominated in the lien law as “ materials in building,” and for which a lien may be acquired.

Judgment for plaintiffs for the amount admitted to be -in the hands of defendant Byrnes, belonging to the contractor.  