#### Louis C. Beck, Plaintiff, *v.*The Catholic University et al., Defendants.

(Supreme Court, New York Special Term,

October, 1900.)

Mechanic’s lien — Liability of executory vendor where it consents to the erection of a building on the land sold.

Where the vendor, under an executory contract for the sale of real estate, consents that the vendee take immediate possession of, and erect a permanent structure on, the premises, lienors who have rendered work, labor and' services to such structure may, after the vendee’s default, enforce their liens against the premises to the extent of the market value of the labor and materials done and furnished.

Action to foreclose mechanics’ liens.

Cannon *&*Cannon, for plaintiff.

James, Schell *&*Elkus, for defendant Catholic University.

Louis S. Phillips, for defendants Mackay and Smith.

Wilfred N. O’Neil, for defendant Hamilton.

*568Fitzgerald, J.

This is an action for the foreclosure of mechanics’ liens, filed against the property of the Catholic University. By an agreement dated June 1, 1897, the Catholic University, by its president, agreed to sell to Augustus C. Dexter certain lots on the east side of Riverside avenue, 450 feet north of One Hundred and Twenty-second street, 75 by 200, for the sum of $100,000 (subject to a mortgage for $50,000), payable as follows: $500 cash on June 5, 1897; $1,000 cash on September 1, 1897; $2,000 cash on December 1, 1897; on which last-mentioned day the deed to be delivered, and the balance, $46,500, paid by the said vendee executing and delivering to said vendor his bond for the sum of $46,500, secured by a second mortgage. The agreement further provided that, “ In the event of default in the payment of any other sum due the vendor, and payable on or before December 1, 1897, within ten days after notice from the vendor by registered letter to the- vendee at No. 1125 Madison avenue, New York city, that the said payment has become due, this contract is to be null and void, and the payments theretofore made, either to the vendor or on his behalf, are to- be deemed as liquidated damages.” This contract contained the following paragraph: *“*It is further understood and agreed, that the vendee shall have the right of immediate possession to the property hereinbefore mentioned and described for the purpose of erecting buildings thereon.”

On May 27, 1897, Louis C. Beck agreed to erect for Augustus O. Dexter a building on the premises described above according to plans and specifications drawn by John A. Hamilton, and to furnish the labor and materials necessary for the erection of said building and fitting up the same, and all work incidental thereto, for the market value of the labor and materials at the time of the furnishing thereof, plus 15 per cent. The said building to be ready for occupancy on or before July 1, 1897. It thus appears that by the agreement dated June 1, 1897, Augustus O. Dexter was to have the right of immediate possession of the property for the purpose of erecting a building thereon, that he at once entered into a contract for the erection of such building, and that this' building was completed about August 18, 1897. Between June 1 and September 1, 1897, vendee paid the University the sum of $1,500, and the additional sum of $388.89, for interest due on the first mortgage on the property, but failed to pay the sum of *569$2,000 due December 1, 1897, and thereupon the contract of sale became null and void.

The University retook possession of the land with the building erected thereon. The value of the building is estimated by defendants’ witnesses at $10,000, and by plaintiff’s witnesses at $14,000, respectively. The rental value is not less than $2,500 per annum. The facts set forth bring this case clearly within the decision of Schmalz v. Head, 125 N. Y. 188, where it was held by O’Brien, J., at page 193, *“*It was the design and purpose of the statute to charge the land with debts contracted in improving it by the erection of buildings thereon in case the owner consented or permitted the work to be done; although under an agreement made with the vendee under an executory contract. In case the agreement of sale should be surrendered or forfeited, the value of the owner’s interest would be enhanced by the accessions to the land; and it would be manifestly unjust to permit the owners to enjoy those benefits without liability for any part of the labor or material which produced them.” This doctrine has been steadily followed and reaffirmed as late as the case of National Wall Paper Co. v. Sire, 163 N. Y. 130.

The vendor consented to the erection of a building by the vendee. The structure erected cannot be claimed to be other than such as was reasonably in contemplation of the parties at the time of the execution of the contract of sale, and is in many respects similar in character to a building upon adjacent land.

Defendant is now, and has been for some time, in the enjoyment of rentals derived therefrom, and in this and other respects the case is easily distinguishable from Vosseller v. Slater, 25 App. Div. 368, 372, cited on defendants’ (University) brief.

The second question presented is as to the market value of the labor and materials furnished in the erection of this building. The mason work was done by the plaintiff, and he also furnished the materials and supplied the labor for the painting of the building. The carpenter work, iron work and plumbing work were given to contractors who, according to the testimony, furnished the lowest estimates.

Plaintiff’s expert Carlin testified that the cost of laying 1,000 brick on this building was $17. This estimate included the cost of brick, labor and all other material incidental to the laying of this number of brick. In arriving at this conclusion, he places *570the price of brick at $7 per 1,000. From exhibit 17 (the bill of James Rogers), it appears that the cost of brick was $5.50 per 1,000. Taking Carlin’s estimate of $10 for labor and materials necessary to lay 1,000 brick, and the actual cost of the brick, I find $15.50 to be the fair and reasonable value for laying 1,000 brick, or for 265,000 $4,107.50 as against $5,289.30, the amount claimed by' plaintiff, the different being $1,181.80. Plaintiff claims $1,011.75 for materials and labor furnished for the painting of the building; there is no testimony as to the number of men engaged in the work or the number of days they were so employed. Plaintiff’s expert (Carlin) fixes the reasonable value of the work, including labor and materials at $800’, a difference of $211.75.

Owing to the mistakes of plaintiff, or his agent, certain changes were made in the building, made necessary by the order of the department of buildings, which added to the cost of the building the sum of $201.34. There should, therefore, be deducted from the amount claimed by plaintiff ($13,886.09), the sum of $1,594.89 made up as follows:

Deduction on the cost of laying brick........... $1,181 80

Reduction on the cost of painting.............. 211 75

Reduction for certain changes in the building. ... 201 34

$1,594 89

Making plaintiff’s claim....................... $12,291 20

Add 10 per cent for plaintiff’s services, which sum he agreed to accept in lieu of amount fixed by contract ................................... 1,229 12

Making a total of........................... $13,520 32

Deduct amount paid......................... 5,500 00

Amount due plaintiff.................... $9,020 32

I find there is due the plaintiff $9,020.32, with interest and costs. Due John A. Hamilton, $614.56, with interest and costs. Due Mackay *&*Smith, $785, with interest and costs.

Judgment accordingly.