#### Henry C. Griffin, Appellant, *v.*Gustav Ernst, Respondent, Impleaded with Henry Sielleck, Jr., Defendant.

First Department,

February 31, 1908.

Mechanic’s lien — machinery furnished to equip factory.

One who furnishes and installs second-hand machinery in a vacant building which the owner purchased for the express purpose of equipping as a factory for his own use, is entitled to a mechanic’s lien for a balance of the purchase price unpaid, even though no extensive alteration was made for its.installment and it was merely fastened to joists by screws so as to be removable without injury to the building.

Such machinery may be considered to be furnished “for the improvement of real property ’’ within the meaning of the Mechanics’ Lien Law.

Ingraham, J., dissented, with opinion.

Appeal by the plaintiff, Henry 0. Griffin, from a judgment of the Supreme Court in favor of the defendant, Gustav Ernst, entered in the office of the clerk of the county of New York on the 4th day of December, 1907, upon the decision of the court, rendered after a trial at the New York Special Term, dismissing the complaint. .

*Franlclin Pierce*of counsel, *Phillip S. Hill*with him on the brief [Griggs, *Baldwin cfs*Pierce, attorneys], for the appellant.

*Edward*Herrmann, counsel for the' respondent.

*290Clarice, J.:

This is an action to foreclose a mechanic’s lien: 'The defendant Ernst was the owner in fee of' the piece of real property known as Hos. 757-759 East One Hundred and Sixty-fifth street, in' the borough' of the Bronx, in the city of Hew York. - Upon said'property when bought by Ernst was a two-story frame structure fifty feet by seventy-two feet in size> unceiled and unplastered, the inside rough and the joints exposed. ■ It had been used by a prior owner as a sash factory, the machinery of which was run by a large steam engine. All of the machinery of the sash factory had been removed and the building was vacant when Ernst purchased it.

Defendant testified that prior to that time lie had a much smaller . plant and had just bought this property and-was starting a larger plant; that lie bought it for tile purpose of running a manufacturing establishment .there;, that lie adjusted, .it to manufacturing machinery; that he was fitting' it up 'for manufacturing purposes,. manufacturing general iron work for buildings; that he had ■ been for seventeen years a manufacturer and intended to carry on his business in that placé as long as it suited him..

He entered into a contract in writing; with the plaintiff,, under which the plaintiff' was to furnish and put up certain specified machinery and an electric motor, mostly second-hand' articles, for which the defendant agreed to pay the sum of $1,550. The machinery was installed and the defendant paid a portion of the sum ■ agreed, but having failed to pay the balance,, a mechanic’s lien in •the sum of $1,031.75' was filed and this action thereafter brought to foreclose the same.

The learned court at Special.Term in its decision, found-that the defendant was the owner in fee of the property in suit; that the contract was made ; that the notice of lien was filed containing all the statements required by and in all .respects complying with the statute, was duly docketed and á. copy thereof' served upon- the defendant Ernst," the. Owner. *“Fourth.*That said lien has not been paid, canceled or otherwise discharged,..and that no other action, or proceeding has been brought by the plaintiff for the fore.closure of the same, or for the recovery of the money intended to be secured tliei'eby.. *Fifth..*I,find that the machinery furnished to the'defendant, Gustav Ernst, could be .removed without injury *291to the building. *Sixth.*I find that the plaintiff has failed to make out a case to entitle him to a lien under the Mechanics’ Lien "Law and as a conclusion of law, that the defendant Ernst is entitled to a judgment dismissing the plaintiff’s complaint, which judgment was thereafter "entered.

The appellant claims that the finding of fact “ that the machinery furnished to the defendant, Gustav Ernst, could be removed without injury to the building” is insufficient to support the conclusion-of law that said defendant is entitled to recover judgment dismissing the complaint; but the 5th finding so criticized must be read in connection with the 6th, *“*that the plaintiff has failed to make out a' case to entitle him to a lien under the Mechanics’ Lien Law.” If that finding is supported by the evidence it is enough to justify the conclusion.

The machinery in suit was to a large extent second hand. It was,- therefore, not made for the special purpose of installation in this building, and had no particular characteristics which adapted it exclusively to this building. No extensive alterations of the building wore required or made for its installation, and nothing in the way of permanent foundations, piers or chimneys were required ' or constructed. It was attached to the floor, to the joists and to the beams of the ceiling by lag screws, and the evidence is overwhelming that sucli machinery so attached is often removed from buildings and installed in others, as- was in fact this machinery, and fairly supports the finding that the machinery here installed could be removed without injury to the building.

At the same time it must be' borne in mind that this machinery was furnished to the owner of this real property for his own use, for the purposes to which lie designed the property, namely, for the prosecution of the manufacturing business for which he had bought the. property and in which he was and is engaged. Before the installation of the machinery the building was a bare structure. After the installation it was a manufactory. It had been bought by the defendant for the purpose of so transforming it into a manufactory, and by the materials furnished by. the plaintiff and the labor used at the defendant’s request it had been so transformed.

Section 3 of the Lien Law (Laws of 1897, chap. 418) provides as follows: “ A contractor, sub-contractor, laborer or material man, *292who performs labor or furnishes - materials for the improvement of real "property with the consent, or at-the request of the-owner-thereof, or of his agent, contractor or sub-contractor, .shall have a lien.for the principal and interest of the value of the agreed price of such labor or materials upon the real property improved or to be improved and-upon such improvement, from the time of filing a notice of such lien as prescribed in this article.” Section 2 ' (definitions) provides that the' term *“*improvement ” when used in. this chapter *“*includes the erection,, alteration or repair of any structure-upon, connected: with or beneath the surface of any real property and any work done upon such property or materials furnished for its permanent improvement-.” •

The present- Lien Law is simpler in its language and more compiehensive in its pro visions than any that preceded it. It expressly provides in' section 22 that “ this article is to be Construed liberally to secure the beneficial interests and purposes thereof.”

In *Sears*v. *Wise*(52 App. Div. 118) the plaintiff had made-a contract to deliver and install certain milling maChi-néry to the -firm of Bussell & Birkett, 'said firm agreeing to pay therefor the sum •of $1,853. A feed mill of the value of.,$325,.being part of said ■ machinery, was put in operation, adjusted and accepted. The other machinery was to constitute part of a plant for'manufacturing brewers’ grists and meals._ It was delivered, but its 'installation.was-delayed by a. fire and later by the bankruptcy of the firm. Plaintiff filed a mechanic’s lien for the contract price of the machinery and-intérest. The answers interposed admitted that the feed mill was used in repairing the plant, but denied that.the other machinery was used in or upon- theepremises. The case was tried on the part., of the defendants upon the theory that plaintiff acquired á valid lien for the value of the feed mill which had been installed, but not " for other machinery, because it had not been installed. The court said : “ The plaintiff performed his contract, excepting as he was,prevented by the failure of said firm and of its trustee in bankruptcy to install the- machinery. The. materials were furnished and delivered for the permanent improvement of the- premises against which a lien is claimed. The- Legislature'has directed that this Lien. Law'' shall be interpreted liberally *‘*to secure the beneficial-interests and purposes thereof.’ (§ 22.) On these facts such a construction requires *293that a lien be declared in favor of the plaintiff for the machinery-delivered and not installed, as well as for that actually installed.”

• The appellant urges that a decision holding that a lien attaches where machinery has been delivered but not installed as a permanent improvement to the real estate when the' building for which it was intended has been burned, is a conclusive authority where machinery has not only been delivered but actually installed. But it was admitted in that case that a valid lien for the value of the feed mill, a part of the machinery which had been installed, was acquired, which was an admission that the machinery was intended to constitute a permanént improvement, and, therefore, the court held that, the materials having been furnished and delivered for the permanent improvement of the premises, the language of the act being, “ or materials furnished for its permanent improvement,”, the physical act of installation was unnecessary and the lien had been acquired. • This case, therefore, is not decisive of the question where the fact is in issue as to whether the material was furnished for a permanent improvement, although illustrative of the trend of judicial interpretation of this statute.

So in *Schaghticoke Powder Co.*v. *G. & J. R. Co.*(183 N. Y. 306), where the Court of Appeals held that a powder company had a lien against a railroad for dynamite furnished and used in the blasting of frozen' earth in the construction of its permanent embankment upon which its tracks ran, the court said: “ The argument that dynamite is not a material, but a part of the contractor’s plant which, like picks and shovels or mechanical appliances, are used in the. performance of work, but are not considered materials furnished within the purview of the statute, seems to us inherently unsound. A steam shovel, an engine and boiler, picks, shovels, • crowbars and the like are tools and appliances which, while used in the. doing of the w;ork, survive its performance and remain the property of their owner. Not so, however, with materials that are used up in the performance of the work and are thereafter invisible, except as they survive in tangible results. ¥e think that explosives when used as substitutes for other recognized ‘materials’ are covered' by the same principle. They enter into and form a part of the permanent structure quite as much as the earth, rails, ties, culverts and bridges that we can see and feel,”

*294In that case the dynamite went into-the construction of the permanent structure, which permanent structure remained a physical and tangible thing, and itself real .property. .In and of itself, dyna-* mite would hardly be defined as a fixture. In both cases above cited, the controlling factor was the permanent result intended to be accomplished by the use of the materials .furnished.

Section 1 of chapter 342 of the Laws of 1885, as amended by.chapter 673 of the Laws of 1895, the former Lien Law, provided,, *inter*alia, that any person “ wlio shall hereafter perform, any labor or services or furnish any materials which have been- used in improving or equipping any house, building or appurtenanees with any chandeliers, brackets or other fixtures or apparatus for supplying gas or-electric light,” might have a lien therefor. Such articles could clearly have been removed without injury. ¡Nevertheless, for the purposes of the act, they were regarded as so affixed to the realty as to become part thereof. In the *Schaghticoke Powder Co. Case (supra)*the court reviewed the prior Lien Laws of the State and the report of the Commissioners of Revision, and said : “ It would be difficult to suggest anything more comprehensive than the language used in the present statute. Any ‘ contractor, sub-contractor, laborer or materialman who performs labor or furnishes materials- *for the improvement of realproperty*’ shall be entitled to a lien. When.this language, is contrasted with the specific and restricted phrases of the former statutes, it is plain that the Legislature intended to. bring all labor performed or materials furnished in ■ the improvement.of real estate, no'matter by what name they may he called, pr by what description they may be designated, within the liberal and beneficient purposes of .the statute.”

When we take into consideration in the case at bar the character of the property when the defendant, bought it, the purposes for which he bought it, the fact that the machinery in question was procured for the purpose of improving the property by changing it from ah empty frame building into an active, going concern as a manufactory, and that the installation of this machinery actually brought about that transformation, it seems to me it would be a close and narrow construction rather than a liberal one to carry out the beneficial purposes and interests of the act, to liold tliaf tjie gontractor was not entitled to his lieji.'

*295It follows, therefore, that the judgment dismissing the complaint should, be reversed and a new trial ordered, with costs to the appellant to abide the event.

Patterson, P. J., Laughlin and Houghton, JJ., concurred; Ingraham, J., dissented.

Ingraham, J,- (dissenting) :

I dissent. It seems to me perfectly clear that this machinery was installed in this building for the owner’s use and not' in any way as an improvement of the real property within the provisions of section 3 of the Lien Law (Laws of 1897, chap. 418). Improving real property is one thing. Furnishing a house or building with furniture or other appliances to make the use of the real property convenient or profitable is quite. another, and it seems to me that all the machinery that the plaintiff furnished came distinctly Within the latter class. There was no improvement of real property, because there was nothing added to the real property by the plaintiff that became a part of the realty, or which in any way improved it.

I think the judgment should be affirmed.

Judgment reversed, new trial ordered, costs to appellant to abide event.