#### Henry Farmilo *et al,*App’lts, *v.*Matilda M. Stiles, Resp’t.

*(Supreme Court, General Term, Third Department,*

*Filed May 27, 1889.)*

1. Mechanic’s lien—Husband and wife—Undisclosed owner—Against WHOM LIEN MAY BE FILED.

Where in an action to foreclose a mechanic’s lien, the contract was in the name of defendant’s husband, but the defendant was the undisclosed owner of the property, *Held,*that if the husband was in fact acting as the agent of his wife, it was competent for plaintiffs to file their notice of lien and proceed against her.

2. Same—Question of agency—When one for jury.

*Held,*that the request of the plaintiffs to go to the jury upon the question whether the husband did not act as the agent of his wife, should have been granted.

Appeal from a judgment of non-suit granted at the Albany circuit.

Action to foreclose a mechanic’s lien. The plaintiff was non-suited at the close of the evidence. William V. Stiles, husband of the defendant, made a contract with the plaintiffs to do the mason work upon a house which he represented he was about to build upon a lot in Cohoes, which he represented belonged to himself. The plaintiffs did the work and, upon its completion, a balance of 8218 remaining unpaid, they filed notice of lien for the amount against the defendant who was the owner of the house. The defendant testified that she made an oral contract with her husband, William V. Stiles, to build the house for $3,000, which she paid him in full before the plaintiffs filed their notice of lien. The trial court non-suited the plaintiffs, upon the ground that their contract was with the husband, and the notice of lien was against the wife. Also because the wife had fully paid her husband before notice of the lien. The plaintiffs asked to go to the jury upon tke question whether the husband, at the time he made the contract, was not acting as the agent of his wife. This was refused.

*H. A. Strong,*for app’lts; *J. F. Crawford,*for resp’t.

Landón, J.

The contract was in the name of the husband, but as the wife was the undisclosed owner, if the husband was in fact acting as the agent of his wife, it was competent for the plaintiffs to file their notice of lien, and proceed against her. We think the request of the plaintiffs *378to go to the jury upon the question whether the husband did not act as the agent of his wife should have been granted. The testimony of the wife, is to the effect that her husband procured this house to be built for her and at her request,, and that she furnished him from time to time with money to pay for it as the woi’k progressed. The only difficulty with the case arises from the testimony that she made a; contract with her husband that he should build it for the sum of $3,000, and that the money she paid him was upon this contract, except the sum of $290, which she had previously lent him, and she applied this indebtedness to complete the total payment. The contract, she says, was oral. She further testified that she had several lots and buildings in Cohoes: that her husband had none; that she never had occasion to employ anybody except her husband to do any work on any of the buildings; that she left that to her husband to look after.

Now this secret contract between herself and her husband by means of which she could collect the old debts her husband owed her, and deprive the plaintiffs of their just, pay, does not commend itself to judicial favor. Possibly it was -an afterthought. The testimony upon which it rests, ought to be subjected to that scrutiny which her interest and her advantage suggest, and if so, possibly the jury would make a finding upon it in accord with substantial justice.

The judgment is reversed, new trial granted, costs to abide the event.

Learned, P. J., and Ingalls, J., concur.