Opinion
Argued December 10, 1875
Decided December 21, 1875
Abel Crook for the appellant.
D.P. Barnard for the respondent.
The statute regulating mechanics' liens in the counties of Kings and Queens gives a lien for labor and materials furnished for buildings, by virtue of any contract with the owner or any person permitted by the owner of lands to build thereon. (Laws of 1862, chap. 478; Rollin v. Cross, 45 N.Y., 767.)
At the time of making the contract for, and the actual furnishing of the labor and materials, for which the plaintiff asserts a lien, Duryea was the equitable owner, under an executory contract of purchase from the defendant who held the legal title to the premises. The contract, by virtue of which the labor and materials were furnished, was made with the assent of, and virtually by Duryea. A personal judgment has gone against him for the claim, from which no appeal has been taken. The defendant, the holder of the legal title with a lien for the purchase money, expressly permitted the contract with the plaintiff, and thus subjected his lien for the purchase money to the liens that might be acquired by mechanics for materials and labor furnished in the erection of buildings. By the contract of sale to Duryea, he made it a condition that the latter should erect the buildings, and agreed to loan to him money for that purpose. He also made provision for his own protection against mechanics' liens, by reserving the right to retain, from the moneys to be loaned, the amounts of any such liens that should remain unsatisfied. The contract for the labor and materials having the assent of both the legal and equitable owners of the premises, the mechanics acquired a valid lien as against each. It follows that the defendant, upon a foreclosure of his lien for the purchase money, took the title subject to the lien of the plaintiff. This is not like the case of Loonie v. Hogan (5 Seld., 435) That was a personal action to recover of the seller of lands, the value of materials sold to the vendee, and the court held there was no privity between the plaintiff and defendant in respect to the materials furnished and consequently no personal liability on the part of the defendant to pay for the same.
The judgment of the court below was right and must be affirmed.
All concur.
Judgment affirmed.