#### William Schmalz *et*al., Respondents, *against*Sarah F. Mead *et al.,*Appellants.

(Decided April 1st, 1889.)

By contracts between K. and M., K. agreed to construct buildings on land owned by M.’s wife, M. to advance money to K. as the work progressed, and when the buildings were completed, they and the land to be conveyed to K., he to give mortgages to secure payment of the purchase money and repayment of the advances. M. assigned the contracts to his wife. *Held,*that they were not mere contracts for the erection of buildings, but were agreements for sale of the premises, within the provision of section 5 of the mechanics’ lien law of 1885, that “ in eases in which the owner has made an agreement to sell and convey the premises to the contractor or other person, such owner shall be deemed to be the owner, within the intent and meaning of this act, until the deed has been actually delivered and recorded; ” that therefore the fact that all the payments required by the contracts had been made to K. did not relieve the property from liability to mechanics’ liens, under section 1 of the act; and that the facts that M. assigned the contracts to his wife before the work was performed, that all the money advanced was hers, and that the contracts were solely for her benefit, raised a presumption that the work and materials were performed and furnished “with the consent of the owner,” within the meaning of section 1, sufficient to establish liens therefor.

Appeal from a judgment of this court entered upon the report of a referee.

The facts are stated in the opinion.

*Sewall Sergeant,*for defendants Mead, appellants.

*Philip L. Wilson,*for plaintiffs and defendant Witt, respondents.

*William E. Stewart,*for defendant Abbott, respondent.

Larremore, Ch. J.

These actions were consolidated by-order of the court and have been tried together. The plaint*224iffs and the defendants Witt and Abbott are mechanics and material men, who have performed labor and furnished materials upon, and which were used in the erection of certain buildings upon land in Madison Avenue in the City of New York owned by the defendant Sarah F. Mead. In these actions it is sought to foreclose mechanics’ liens filed by them respectively. The labor and materials were performed and furnished under employment and purchase by one George Kuhn, since deceased. The latter started to construct the buildings in question under contracts with the defendant George W. Mead, in which, among other things, it was provided that said George W. Mead should loan and advance to Kuhn certain sums-of money from time to time as the work progressed, and when the houses were completed, and not until then, they and the land upon which they stood should be conveyed to Kuhn, and he should give mortgages to secure the payment of the purchase money thereof, and the repayment of the moneys loaned and advanced to him. On the 20th day of April-1886, the said defendant George W. Mead assigned the contracts with-said George Kuhn and all rights and privileges thereunder to the defendant Sarah F. Mead.

The learned counsel for the defendants Mead endeavors in his argument to establish that, although the contracts between the Meads'and Kuhn were in terms contracts merely for the sale of land and the giving of mortgages thereon, they nevertheless were in substance, and were understood by all the parties to be, the ordinary contracts for the erection of buildings. The object of this contention is to have the court treat Kuhn as a contractor, and the various mechanics and material-men as sub-contractors. The defendants Mead would then claim that, as they have advanced all the specific sums of money required of them in said contracts, they have paid to their immediate contractor all to which he was entitled, and that therefore there is nothing upon which to base the liens of his employés. But the provisions of these contracts are perfectly plain, and I can see no reason for taking them to be anything but agreements for the sale of lands. The mere fact that the word “ pay ” or “ paid ” is used *225in the instruments to characterize the advances of money from Mrs. Mead to Kuhn is not sufficient to override the clearly expressed intention of the parties. This being premised, certain provisions of the mechanic’s lien law of 1885, under which these notices of lien were filed, exactly cover the facts before us. Section 1 enacts that any person who performs labor or furnishes materials which have been used in erecting a build, ing, “ with the consent of the owner, as hereinafter defined^ or his agent or any contractor or sub-contractor or any other person contracting with such owner,” may have a lien. Section 5 provides that, “in cases in which the owner has made an agreement to sell and convey the premises to the contractor or other person, such owner shall be deemed to be the owner, within the intent and meaning of this act, until the deed has been actually delivered and recorded conveying said premises pursuant to such agreement.” Mrs. Mead has never conveyed the land in question, and section 5 thus, for the purposes of this controversy, defines the word “ owner ” as used in section 1. Furthermore, the concluding clause of section 1 shows that it was not the intention of the legislature to limit its scope to cases where an actual sum of money was due under a contract from the owner of the land to some person, for it expressly contemplates a case where the owner is not under, any contract at all. .

Reading these provisions of the act of 1885 together, the main objections advanced by appellants are so fully met by the express language of the statute, that it only remains to decide whether the work and materials were performed and furnished “ with the consent of the owner,” within the meaning of section 1. It appears that the owner’s husband acted as her general agent with full discretion throughout the transactions. If the property were his instead of hers, probably it would not be claimed that his consent was wanting, for he made the contracts with Kuhn for the conveyance of the property, and moreover had actual knowledge of everything that transpired about the buildings. But Mr. Mead assigned these contracts to Ms wife before the work was performed ; all the money that was advanced was her money : *226and said contracts were solely for her benefit. These facts certainly raise a presumption of knowledge of the improvements and of tacit consent on her part, which, according to the ordinary principle of agency, and under many adjudications upon similar statutes, is sufficient to establish the lien (*Otis*v. *Dodd,*90 N. Y. 336 ; *Husted*v. *Mathes,*77 N. Y. 388 ; *Hachett*v. *Badeau,*63 N. Y. 376 ; *Nellis*v. Bellinger, 6 Hun 560; *Hammond*v. Shepard, 50 Hun 318.)

The judgment should be affirmed, with costs.

J. F. Daly and Van Hoesen, JJ., concurred.

Judgment affirmed, with costs.