Section 1 of chapter 342 of the Laws of 1885 — the Mechanics’ Lien Law (repealed by chapter 418 of the Laws of 1897)-:—pro-vided that any person who shall perform labor or furnish materials used in erecting, altering or repairing any building, “ with the consent of the owner, as hereinafter defined, or his agent,” shall have a lien for the price and value. of the labor performed and materials furnished “ to the extent of' the right, title and interest at that time existing of such owner, whether owner in fee or of a less estate, or whether a lessee for a term of years, or vendee in possession under a contract existing at the time of the filing of said notice of lien, or of the owner of any right, title or interest in such estate, which may be sold under an execution.” (3 R. S. [9th ed.] *3712635.) By the 5th section of the act it was provided: “ In cases in which the owner has made an agreement to sell and convey the premises to the contractor or other person, such owner shall he ■deemed to he the owner within the intent and meaning of this act until the deed has been actually delivered and recorded, conveying said premises pursuant to such agreement.” (3 R. S. [9th ed.] 2640.)
By virtue of these provisions the plaintiff asserts that his assignor, who performed labor and furnished materials in moving and altering the dwelling upon the property under the contract with the vendee in possession, acquired a lien against the interest of the vendor. The vendee, Christina McNally, who contracted with the plaintiff’s .assignor, did not answer, and does not contest the claim of the plaintiff. Bridget Slater, the vendor of the premises, alone defends and contests the right of the plaintiff to establish a lien upon her interest in the property. The provision above quoted from, the ,5th section of the Mechanics’ Lien Law did not provide for or embrace the case at bar. This provision was not intended to embrace, and does not embrace, the case in which the owner in fee of land has ■contracted in good faith to sell and convey it to a vendee, who has the right of possession of the land under the contract, provided the contract of sale was executed and possession thereunder given before the contract -was made by the vendee for constructing or altering the buildings, and provided the contract of sale does not provide that the vendee shall erect a building on the premises. This provision of the statute was intended to provide for and embrace a ■class of contracts common in the cities of this State, by which the owner of the fee of a lot by an executory contract agrees to sell and subsequently convey it, and by the same contract binds the vendee to erect a building thereon of a prescribed kind and within a time fixed. Such contracts usually provide that the vendor shall advance money to the vendee from time to time as the building progresses to enable the vendee to erect a building, and provides that when the building is completed the vendor shall convey the property to the vendee and take back a mortgage as security for the purchase price of the lot and for the sums to be advanced to the vendee under the contract. (Schmalz v. Mead, 125 N. Y. 188; Miller v. Mead, 127 id. 544.) This provision was brought into the statute in 1863 (Chap. 500, § 14) to avoid the effect of the cases of which Loonie v. Hogan *372(9 N. Y. 435) and those cases cited in paragraph 72, page 4998 of the 3d volume of Brightly’s New York Digest are types.
There is no provision in this executory contract of sale binding the vendee to remove the cottage, or alter it or repair it. The provision is that the vendee shall have the privilege, of removing the’ cottage from where it stood at the execution of the contract to another part of the lot. The vendee might or might not do it as-she chose. There is no suggestion in the contract that the cottage was to be rebuilt or extensively repaired. The vendor, Mrs. Slater,, had no power to compel the vendee to remove the cottage or to control the vendee as to what repairs should be made upon it, at what expense or by whom. The alterations were not made for her benefit, and, as it turned out, they were made to her great injury, as the undisputed evidence is that the premises as altered were not worth as much as they were before the change, and could not be rented for as much as formerly. The mere fact that Mrs. Slater knew that her vendee contemplated moving and altering this cottage before the contract of sale was entered into, and talked about it with the person who did the repairs, knew that he was going to make them, and knew that he was making them, does not render her interest in the land subject to a lien filed for labor performed and materials furnished. It would be a most unusual statute and of doubtful validity which should provide that, in casé a vendor sells real estate by an ordinary executory contract of sale, knowing that the vendee intended to erect a building thereon, the vendor’s interest should be charged with a lien for the expense'-of erecting a. building, and so improve the vendor out of his estate.
The term “with the consent of the owner,” as used in the statute,, implies that the owner has power to give or withold his consent in respect to the construction, alteration or repaTation of the building.. In case the vendor in an executory contract has no authority to ' recpiire the vendee to build, alter or .repair, and has no power to preven.f Jinn.from doing so, his interest cannot be charged with a mec.higpÍQls-, lien for the erection, reparation or improvement of a builfiing, .ordered by the vendee simply because he (the vendor),, knowing that the work has .to be done and knowing that it is - being done, does not try to stop what he has no power to prevent. (Havens v. The West Side Electric Light & Power Co., 44 N. Y. St. Repr.. *373589 ; S. C., 17 N. Y. Supp. 580; affd; 49 N. Y. St. Repr. 771; S. C., 20 N. Y. Supp. 764; Hankinson v. Vantine, 152 N. Y. 20; McCauley v. Hatfield, 59 N. Y. St. Repr. 552; S. C., 28 N. Y. Supp. 648.)
In case an owner of premises has such control over them that he may permit or prevent their improvement by the person in possession, stands by and allows them to be improved, a different question is presented, and the cases arising out of such a state of facts are not germane to the question involved in the case at bar.
It is clear that the plaintiff’s assignor never acquired a legal lien on the interest of the appellant in the land, and the judgment against Bridget Slater should be reversed and a new trial granted, with costs to the appellant to abide the event.
All concurred, except Adams, J., who concurred in the result.
Judgment reversed and a new trial ordered, with costs .to the appellant to abide the event.