Wheeler v. . Scofield

Earl, J. The plaintiff claims his lien under the act chapter 489 of the Laws of 1873. Section 1 of the act provides that “ any person who shall hereafter perform any labor in erecting, altering or repairing any house, building, or the appurtenances, etc., or who shall furnish any materials therefor, with the consent of the owner,” shall, on compliance with the act, have a lien for the value of such labor and materials. The claim is made by the owner that the materials were *314 not furnished with his consent. He had made "a contract with Coons & Pearson to erect the house, they doing all the work, and furnishing all the materials. And the materials furnished hy the plaintiff were such as were called for hy this contract. The owner having made a contract for the use of these materials in the erection of the building, must be held to have consented that they should be furnished within the meaning of the act. The act gives a lien in the case of materials furnished to a contractor or sub-contractor, and it cannot be supposed in such case, the express consent of the owner is required. In the absence of any objection in such case, his consent must be inferred. It is also claimed that the plaintiff should have been defeated, for the reason that the contractors failed, without sufficient excuse, to complete the building. By the terms of the contract, they were to complete the building by the first day of December. They were required to do considerable extra work, and continued, with the knowledge and approbation of the owner, to work upon the building until January eighth, when they failed in business, and their workmen discontinued work. The owner did not declare the contract forfeited, but as the referee found, obtained their consent that he might go on and finish the building. They consented, and he finished the' building. In such a case, where the contractors have nearly completed their contract, and several hundred dollars have been earned, but not paid, before the owner can claim that the contract was forfeited, he must show that in some way he claimed the forfeiture, and thus distinctly put the contractor in default. It was a just inference, from all the facts in this case, that the owner undertook to complete the building at the expense of the contractors. This view was justified by the evidence, and we cannot disturb the finding of the referee. The evidence of Bobert Coons objected to was wholly, immaterial, and could not have harmed the defendants, and hence the exception to the ruling admitting it furnishes no ground for a reversal of the judgment. It will thus be seen that upon the merits the judgment is *315 right. But the appeal must be dismissed. The judgment for plaintiff is only $411.18, exclusive of costs, and hence under the act chapter 322 of the Laws of 1874, is not appealable to this court. We have held that an action to foreclose a mortgage is not, within the meaning of that act, an action “ affecting the title to real estate, or an interest therein,” and the same must be true of an action to foreclose a lien under the lien laws. Such an action is simply to enforce the collection of a money demand out of real estate, and no more affects the title than the attempt to enforce the collection of any debt against the debtor’s estate. The real estate may be taken, but the action itself does not affect, determine or change any title. The appeal must be dismissed, with costs. All concur. Appeal dismissed.