#### John B. Ross, Appellant, *against*John Simon, Respondent, *et al.*

(Decided April 7th, 1890.)

Under the provisions oí the mechanic’s lien law of 1875, giving a lien on a house, etc., to persons performing work in erecting it, etc., “ with the consent of the owner,” and requiring that the notice of lien shall state “the name of the owner, lessee, general assignee, or person in possession of the premises, against whose interest a lien is claimed (Laws 1885 c. 342 §§ 1,4), a notice which states the name of the owner, and that the labor and materials for which a lien is claimed were done and furnished with his consent, is sufficient, although it does not expressly state that the lien is claimed against his interest.

A statement in such notice of “the name of the owner of the leasehold against whose interest a lien is claimed,” is not exclusive, and does not estop the lienor from claiming also a lien against the interest of the owner.

In a complaint to foreclose a mechanic’s lien on a house, etc., for work and materials, an allegation that the owner had full knowledge of the erect, ing, etc., of the buildings, and consented to the same, and to the perform*160ance Of the labor and supplying of the materials by plaintiff, is a sufficient averment of “ the consent of the owner,” required by Laws 1885 c. 342 § I, to create a lien against his interest, without alleging how or under what circumstances his consent was given.

Appeal from a judgment of the General Term of the City Court of New York affirming a judgment of that court sustaining a demurrer to a complaint.

The action was bought to foreclose a mechanic’s lien upon property owned by defendant Simon. He demurred to the complaint on the ground that it did not state facts sufficient to constitute a cause of action against him. His demurrer was sustained by the Special Term of the City Court, and from the judgment entered thereon plaintiff appealed to the General Term of that court, which affirmed the judgment. From that decision plaintiff appealed to this court.

*James 0.*JDelamere, for appellant.

*Stephen Philbin,*for respondent.

J. F. Daly, J.

The owner of the premises, demurred because the lien, a copy of which is annexed to the complaint, did not contain the statement that • the lien was claimed against the interest of the said owner; also on the ground that the allegation in the complaint that the defendant, the owner-, had full knowledge of and consented to the doing of the work, was insufficient, there being no averment of any agreement or contract with him. The demurrer was sustained upon both grounds.

The lien act provides that persons performing work, etc., in erecting an)r house, etc., “ with the consent of the owner, ” may have a lien upon. the house and lot whereon it stands, and also provides that the notice of lien shall state “ the name of the owner, lessee, general assignee, or person in possession of the premises against whose interest a lien is claimed.” (Laws 1885 c. 342 §§ 1, 4.)

In the notice filed by this claimant is a statement that “the *161name of the owner of the leasehold against whose interest a lien is claimed is Ignatz Schmitt, and the owner of the fee of said premises is John Simon. That the name of the person by whom claimant was employed and to whom he furnished such materials is N. B. Muir .... That said labor and materials were done and furnished with the knowledge and consent of John Simon, the owner of the fee of said premises.

The notice thus contained a statement of the fact which, by statute, gives a lien upon the interest of the owner, viz., that the work was done with his consent, and such statement is sufficient notice to.him and all others that the lien thus given by statute is claimed against his interest. It is not prescribed that the notice shall state in so many words that the lien is claimed against such and such persons, but that the names of the persons against whose interest the lien is claimed shall be given. If, therefore, the names are given and the facts subjecting their interests to the lien are stated, the statute is satisfied: The fact that the plaintiff’s notice expressly states “the name of the owner of the leasehold estate against whose interest alien is claimed,” is not exclusive, and does not estop the lienor from also claiming a lien against the interest of the owner. The case of *Moran*v. *Chase*(52 N. Y. 346) is in point. That case arose under the Kings and Queens County act of 1862 (Laws 1862 c. 478), which required the notice to state “ the person against whom the claim is made, the owner of the building, and the situation of the building,” and the notice stated that “ the name of the person against whom the claim is made is S. B. Vreeland, and the said work and materials so furnished was by and at the request of said S. B. Vreeland,” and that the owner was George K. Chase. It was held that a lien was acquired thereunder against Chase, the owner, notwithstanding the statement in the notice that the claim was against Vreeland only. This case is to be distinguished from *Jones*v. *Manning*(6 N. Y. Supp. 338, 25 N. Y. St. Rep’r 771), cited by appellant, for in that case the decision is put upon the ground that there was nothing in the notice to indicate that the lienor was seeking to *162place a lien upon the interest of the party named. Here the notice fully apprizes all persons of the intent to charge the interest of the defendant.

It remains to be considered whether the allegations of the complaint are sufficient as a statement of a cause of action against Simon, the owner. The complaint sets forth in substance that the defendant John Simon was and is the owner of the premises described in the complaint, being a lot of land in the City of New York ; that he leased the lot and the house thereon for the term of 21 years from May 1st, 1888, to the defendant Ignatz Schmitt by instrument duly recorded; that Schmitt assigned the lease to the defendant Barbara Schmitt; that the defendant Muir contracted with her tó do certain work, labor, and services and furnish materials in and about the erecting, altering, or repairing of the house or building on the premises for the sum of $2,175, and so far completed the same as to become entitled to receive a sum largely in excess of the claim of plaintiff . who, under contract with Muir, did certain plastering and furnished materials for the said building for the sum of $245, upon which there is due $120 ; and that the defendant John Simon, the owner of the fee of said premises, had full knowledge of the erecting, altering, and repairing of said buildings, and consented to the same and to the performance of the labor and supplying of the materials by the plaintiff as above set forth.

This averment is, I think, sufficient under the statute. It is not necessary to aver how, or under what circumstances, the consent of the owner was given, any more than it would be necessary to set out the particulars of a contract if the averment had been that the work was done under or pursuant to a contract with him. In other words, the evidence in support of the allegation of consent is not to be pleaded. What the liability, if any, of the owner may be found to be, upon the facts proved, is a wholly different question from that before us, which is. concerned with the question of pleading only.

Under the Lien act of 1873 (Laws 1863 c. 486), giving alien upon the house and lot where the work is done and materials *163are furnished “ with the consent of the owner,” it was held that the simple consent of the owner is sufficient without proof of a contract by him for the improvements *(Otis*v. Dodd, 90 N. Y. 336.) In that case the lease with the owner contained a covenant for the erection of the buildings and im provements, which were to become a part of the freehold, and not to be removed at the expiration of the lease; and the court approves the doctrine in *Nellis*v. *Bullinger*(6 Hun 560), that the statute gives a lien as well where the owner consents to the erection of a structure upon his land, as where he directly contracts for its construction; and the decision in *Husted*v. *Mathes*(77 N.Y. 388), where the owner simply knew of the improvements made by the husband upon the land and consented to them, and it was held that her simple consent authorized the lien.

Upon these authorities it is clear that the allegation of consent on the part of the owner is sufficient by way of pleading. We have not now to deal with the question whether the facts to be proved will bring the case within the authorities holdizzg the owner liable, whether the consent proved does or does not amount to an authorization of the work, as stated in *Ottiwell*v. *Muxlow*in this court (6 N.Y. Supp 518, 24 N.Y. St. Rep’r 38).

The judgment of the General and the Special Terms should be reversed and the demurrer overruled and judgment upon the demurrer in favor of plaintiff ordered, with costs, and, if so adjudged by the City Court, with leave to defendant to answer upon payment of costs.

Labbemobe, Ch. J., and Bischoee, J., concurred.

At the May Gezzeral Term, 1890, the respondent made a motion for a reaz'gument of the appeal, or for leave to appeal to the Court of Appeals, ozi which the following opinion was rendered, June 2d, 1890.

Peb Cubiam.—[Present, Labbemobe, Ch. J., and Allen and Bookstateb, JJ.]—The appeal was from a judgment of the General Term of the City Court affirming a judgment upon *164demurrer. There were but two questions upon the appeal. The first was whether or not the statement in the lien was sufficient as against the owner ; and the second was whether the allegations in the complaint that the defendant, the owner, had full knowledge of and consented to the doing of the work, was a sufficient pleading of the facts. The reargument is asked for on the authority of *Cornell*v. *Barney*(94 N. Y. 394), which the respondent claims his counsel through in advertence overlooked, and to which he failed to draw the. attention of the court. But that case does not touch the ¡question of the sufficiency of the notice of a lien- in any way, and the sole question decided there was that, in order to bind the owner, the work must be done or materials furnished at his instance' or that of his agent, and in the absence of evidence that the lessor had some connection with plaintiff’s contract, plaintiff is not entitled to have or enforce a lien against the interest of the lessor in the land or building, but only against that of the lessee. This does not affect the question of what it is necessary to plead in the complaint in order to admit evidence to -hold the lessor; it only goes as to what evidence would be required in such a case, and that distinction was expressly made by the General Term which reversed the judgment in this cáse.

The motion for a re-argument or for leave to go .to the Court of Appeals will therefore be denied, with ten dollars costs.

Motion denied, with costs.