
    William Tubridy, Appellant, v. Stephen J. Wright et al., Executors, Respondents.
    (New York Common Pleas—General Term,
    March, 1894.)
    The right to file a mechanic’s lien for labor and materials furnished under a contract with the owner of a building, under the act of 1885, terminates with the death of the latter, and a lien filed subsequent thereto is not to be preferred to the title of the heirs and devisees, and does not attach to their interests.
    
      A consent by testamentary trustees to the completion of work upon property of the estate does not relate back so as to bind the estate for the. work done under the consent of the testator.
    Exceptions to referee’s report on appeal from judgment. Action to foreclose a mechanic’s lien. Plaintiff performed work and furnished material under a contract with defendants’ testator, by which plaintiff was to do the plumbing in certain houses owned by said testator. Before the work was completed the testator died, and thereafter defendants requested the completion of the work, which was complied with, the value of such work amounting to sixty 'dollars. After the completion of the work plaintiff filed a lien for the balance due on the entire contract, amounting to $2,557.70. The referee found that he had a valid lien to the amount of the sixty dollars, and disallowed the balance of the claim.
    
      Earley <£¡ Prendergast, for appellant.
    
      E. PP. Moeram, ( Wm. J. Leitch,, of counsel), for respondents.
   Per Curiam.

We have repeatedly held that the right to file a mechanic’s lien for materials furnished and labor performed upon a contract with the owner of a building terminates with his death, and that a lien filed subsequently does not attach to the building or land or the interest of the heirs or devisees. Crystal v. Flannelly, 2 E. D. Smith, 583; Meyers v. Bennett, 7 Daly, 471; Brown v. Zeiss, 9 id. 240.

These decisions were under former mechanics’ lien acts, and the appellant now contends that they are not controlling under the act of 1885, chapter 342, the benefit of which is claimed by the lienor here. This contention is based mainly upon the fifth section of the act, which provides that the lien filed under it shall be preferred as prior to any conveyance, judgment or other claim which was not docketed or recorded ■at tire time of filing the notice of lien, and the argument is that, except as against recorded conveyances and claims and docketed judgments, the lien is to be preferred against every other claim whatsoever, the legislature intending to exclude all preferences over the lien not specified in the statute.

This contention is disposed of by the decision in McCorkle v. Herrman, 117 N. Y. 297, where the present lien act and this particular section of it were under consideration. The court held that the section gave the lien priority over unrecorded conveyances and undoclceted judgments, etc., but that no other priorities are given by the act, and that where a creditor, who, prior to the filing of the lien, has pursued the usual remedies for the collection of debts, has acquired a legal or equitable right to have the sum due from the owner for labor or materials applied in satisfaction of his claim, such right is not overreached by liens subsequently filed under the act. Upon this reasoning it must be held that the interests of the heirs or devisees of the deceased owner not being included in the section enumerating the claims over which the lien is to have priority, the lien filed subsequently to the vesting of their title is not to be preferred over it. As to the consent of the trustees to the completion of the plaintiff’s work, that consent does not relate back so as to bind their estate for the work done under the consent of the former owner. Mitchell Vance Co. v. Daiker, 46 N. Y. St. Repr. 189 ; 19 N. Y. Supp. 378.

The judgment should be affirmed, with costs.

Present: Daly, Oh. J., Bischoff and Pryor, JJ.

Judgment affirmed, with costs.  