This action is to foreclose a mechanic’s lien filed by the plaintiff. The defendant Hamilton, the architect, and the. defendants Mackey & Smith, materialmen, answered and set up liens which they asked to have enforced. The judgment is against the Catholic University of America, which was the owner of lots of . land on Riverside Drive. The defendant Dexter was in possession of the property under a contract of sale made with the university in June, 1897. By that contract the Catholic University agreed to sell the premises to Dexter for $100,000. There was a mortgage on the lots of $50,000. Dexter agreed to pay $500 in cash on June 5,1897; $1,000 in cash, with interest, on September 1,1897; $2,000 in cash, with interest, on December 1, 1897, and upon that last payment being made, the university was to convey to Dexter, who was to give back a mortgage for $46,500 to be paid in annual installments of $5,000: It was further provided in the contract that if Dexter defaulted in the payment of any of the sums diie on or before December 1, 1897, the contract was to be null and void, if the vendor gave ten days’ notice to the vendee that they had become due. In December, Dexter defaulted in payment and his right to the property under the contract ceased and the university took possession. In the contract between the university and Dexter is contained the following provision: “ It is further understood and agreed, that the vendee shall have the right of immediate possession tó the property hereinbefore mentioned and described, for the purpose of erecting buildings thereon.” A few days before the execution of this contract of sale Dexter had made an arrangement with the plaintiff to construct a restaurant building on the premises in question, but no work was begun until after the contract of sale had been executed and delivered by the university to Dexter. All the terms and conditions of the contract of sale made by the university with Dexter were negotiated by Mr. Dahlgren, an attorney at law representing the university in the city of New York, that institution being a foreign corporation located in Washington and all of its officers residing there.
*601The plaintiff, while Dexter was in possession, constructed upon the premises a building at a cost of over $14,000, on account of which Dexter paid $4,500. Dexter also paid the university $1,000 due September 1, 1897, and also the sum of $500 due upon the signing of the contract, and interest on a first mortgage from June, 1897, to August, 1897, amounting to $388.89. The building was fully comjfieted with the result that the university received $1,800 in cash and a building of the value of about $15,000. Hamilton, the architect, and Mackey & Smith having filed their liens, the judgment herein determines that they are valid and enforcible.
Upon this appeal of the Catholic University the first point urged by the appellant is that, under the contract between the university and Dexter, the former had no such interest in the premises as could be subject to a lien. It is claimed that under the Lien Law of 1897 (Chap. 418) Dexter should be regarded as the owner and the only person against whom a lien could be filed. This contention is untenable. The 2d section of the Lien Law provides that the term “owner” includes the owner in fee of real property or of a less estate therein, a lessee for a term of years and a vendee in possession under a contract for the purchase of such real property, and all persons having any right, title or interest in such real property which may be sold under an execution in pursuance of the provisions of statutes relating to the enforcement of liens of judgment. Under this definition the term “ owner ” embraces a vendor of real property under a contract such as that made between the university and Dexter. I do not think the provisions of section 21 of the Lien Law affect this subject, but that that section is a specific part of the enactment relating solely to building loan contracts connected with the sale of land. Under the act of 1885 (Chap. 342, .§ 5) 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 be deemed to be 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.” Under that act a vendor was held to be an owner until the deed was delivered. (Schmalz v. Mead, 125 N. Y. 188.) While this provision of the act of 1885 is not re-enacted in the law of 1897, yet the definition of section 2 of the last-cited act is broad enough *602to include the vendor in a contract for the purchase of real estate, and I think the evident purpose of this act is to give a general right to a lien as against all persons who come within the definition of that 2d section where the coñsónt of such person to the erection of a building is shown. In this case the consent of the university is shown, not by statements or declarations of or conversations had with Hr. Dahlgren subsequent to the execution of the contract of sale between the university and Dexter, but by the terms of the contract. Hr. Dahlgren is not proven to have been a general agent of the university nor authorized by it to do anything concerning the erection of buildings after the contract of sale was made. Inferences of authority may not be drawn simply from his acts or what are testified to as having; been his declarations. But the university consented to Dexter erecting the buildings on the land and gave him the right of possession for the express purpose of putting up buildings: It was the intent of the university that buildings should be erected upon the land and there was no other reason for giving him possession before the delivery of a deed than that such buildings might be erected. They w.ere authorized and express permission given. The owner knew that improvements would be made; there is an agreement that they might be made, and it is as clear and express a permission and consent as could well be given.
There are many cases upon the subject of the' consent of the owner to improving his land which binds that land to liens filed by those making the improvements, such as Schmalz v. Mead (125 N. Y. 188); Miller v. Mead (127 id. 544); Cowen v. Paddock (137 id. 188); Vosseller v. Slater (25 App. Div. 368); Steeves v. Sinclair (56 id. 448); De Klyn v. Gould (165 N. Y. 282); Burkitt v. Harper (79 id. 273); Otis v. Dodd (90 id. 336); National Wall Paper Co. v. Sire (163 id. 122). They are instructive upon the general subject of consent. It is unnecessary to- discuss them in detail. Here there is not mere acquiescence or an implication of consent by standing by and seeing improvements made without objection, but there is an express authorization to make improvements, contained in a contract, the conditions of which are. such as to make those improvements become by necessary consequence the absolute property of the university in the event of Dexter failing to make *603any one of his payments before the time at which the deed was to be delivered to him. The university gets the whole benefit of the completed work of the plaintiff and the other lienors.
If the lien of the plaintiffs is valid and enforcible it necessarily follows that those of Mackey & Smith and of Hamilton may also be enforced.
I think the judgment is right and should be affirmed, with costs.
O’Brien and Laughlin, JJ., concurred; Van Brunt, P. J., and Ingraham, J., dissented.