Summary
In Huested v. Mathes (77 N.Y. 388) the real estate of a married woman was subjected to a lien where the improvement was made under a contract with her husband. It was there held that the consent of the owner might be implied from her knowledge of the work and the absence of any objection on her part.
Summary of this case from National Wall Paper Co. v. SireOpinion
Argued April 25, 1879
Decided May 20, 1879
Samuel Hand, for appellants.
C. Frost, for respondent.
The facts found by the referee bring the case within the provisions of the "act for the better security of mechanics and others erecting buildings in the county of Westchester," etc. (Chap. 402, Laws of 1854, as amended by the act of 1873, chap. 489.) By these statutes whenever the owner of land consents to the erection of a building upon it, a lien is given to persons furnishing materials used in its erection. The defendant (Catharine Storms) was informed of the intended improvement, and knew of the work while it was in progress. She received the benefit willingly. This we think sufficient to warrant the finding of the referee. ( Nellis v. Bellinger, 6 Hun, 560.)
It is, however, contended by the learned counsel for the appellant that, inasmuch as the owner of the land in this case was a married woman it cannot be bound, inasmuch as she has neither consented in writing to charge her separate estate nor made any contract for its benefit. But the statute prescribes the conditions on which the lien is to attach and they are found in this case. It was not necessary that the owner should have contracted for the materials and however manifested, the "consent of the owner" to the erection of the house is sufficient. The case is not one of contract. The woman creates no debts; but consenting to the improvement of her land, it is by statute subjected to a lien. As to that land she is to be regarded as though unmarried, and her consent may be implied from her knowledge; in the absence of any objection her silence may, as in other cases, be deemed sufficient evidence of assent. ( Anderson v. Mather, 44 N.Y., 262.) The cases referred to by the appellant's counsel do not seem to affect the question. Jones v. Walker, ( 63 N.Y., 612,) was decided under a statute which gave a lien for labor and materials furnished by virtue of a contract with the owner or his agent. The wife owned the land. The contract was made with the husband, and it did not appear that he was acting as her agent, — ( Ainsley v. Mead, 3 Lans., 116; and Yale v. Dederer, 68 N.Y., 329), — both relate to the liability of a married woman upon a contract and do not concern the case before us.
We have examined the other questions presented by the appellant's points but discover no error in the decision of the referee.
The judgment should be affirmed.
All concur, except RAPALLO, J., not voting.
Judgment affirmed.