#### Thomas Craig et al., Respondents, *v.*Robert Blake, Impleaded, Etc., Appellants.

(Supreme Court, Appellate Term,

May, 1899.)

Mechanic’s lien — Where the owner has paid the contractor, creditors of the latter are concluded.

One Lindsay agreed to furnish plumbing materials for the house óf Robert Blake but, as Lindsay was not-able to-obtain the materials from the manufacturing company on his "own credit, Blake wrote the company “I will be responsible for material delivered to Mr. Lindsay on my job * * * to the amount of.$2,400. * * * You can draw on me with Mr. Lindsay’s order ”. : Blake subsequently paid or secured to the company, the full sum of $2,400 for materials furnished by it to Lindsay for the house. - Subsequently persons who had furnished materials to Lindsay filed mechanics’ liens against property of Blake.

*547Held, that, as Lindsay could claim nothing of Blake, the creditors of Lindsay had no claim against Blake and were not entitled to file a lien against his property.

Appeal by the defendants from a judgment in favor of plaintiffs, rendered in an action brought to foreclose a mechanic’s lien in the Municipal Court, first district, borough of Manhattan.

John L. Sullivan, for appellants.

Phillips *&*Avery, for respondents.

MacLean, J.

Defendant Lindsay orally agreed to do the plumbing in defendant Blake’s new house for $4,500, of which the sum of $2,100 was to be for the labor and the sum of $2,400 was to be for the materials. All of the sum of $2,100 for the labor was expended therefor excepting $15, about which no question is made. It soon transpired that defendant Lindsay could not obtain the material from the manufacturer upon his own credit, and so, at the instance of the manufacturer and of Lindsay, defendant Blake entered into direct relation with the manufacturing company, to which he wrote;: “ I will be responsible for material delivered to Mr. Lindsay :on my job, One Hundred and Forty-second street and Lenox avenue, to the amount of $2,400. My contract is half cash and note, payment to be made as the work progresses. Ton can draw on me with Mr. Lindsay’s order,” Thus the defendant Blake undertook to pay the manufacturer, and not defendant Lindsay, directly for the material as delivered, up to the full sum agreed upon for the material. The delivery of the material bad been completed and the. obligation of defendant Blake to pay the full sum- of $2,400 had become fixed by Or before September 9th. On that day, the manufacturer demanded payment, and Blake gave him, as agreed, the note for one-half the amount due, but the other half be promised to pay vdien he had placed his loan, and on the 29th of September, the loan being delayed, Blake gave a note for that half or balance — $1,200: Between these dates, namely, on the 19th, the plaintiffs who had furnished material to Lindsay filed a lien upon Blake’s property. This was bootless. As Lindsay, the contractor, had nothing to claim from the owner, his creditors could claim nothing from the owner, and there was no excuse for filing the lien. Judgment should be reversed, with costs to the appellants.

*548Leventritt, J. (concurring.)

Under the .agreement the defendant'Blake was not obligated to pay the sum of $2,400 to the McShane' Manufacturing Company, but bn the contrary his liability was limited to the value of the plumbing material actually furnished by it for the building on One Hundred and Forty-second street ánd Lenox avenue. Some evidence was introduced on the trial warranting an inference that the notes of Blake representing . his indebtedness to the manufacturing company included the value of materials furnished for some other job. If the plaintiffs can succeed in establishing that Blake is not accountable to the McShane Manufacturing Company for the full sum of $2,400 for' materials supplied by it to the premises, for which the plaintiffs furnished the laundry tubs, their lien would attach to the balance. As the record now stands, however, the judgment must be reversed.

Freedman, P. J., concurs.

Judgment reversed and new trial ordered, with- costs to appellants to abide event. -