I cannot agree that the provision in the contract between the Catholic University of America, the appellant, and Dexter was a consent to the erection of a building upon the property in question within the provisions of the Mechanics’ Lien Law. There was no particular building or improvement to be placed upon this property to which the owner consented. Dexter had agreed to purchase the property, and upon the execution of the contract of purchase the owner gave him possession. The purpose of the vendee in asking possession and of the vendor in granting the same was to enable the vendee to erect buildings thereon, but to give possession for a specific purpose was very far from a consent to the erection of a building within the provisions of the Lien Law. There is not the slightest evidence that this vendor ever knew of the building that was to be erected or what the vendee was doing with the property, or that he consented to the erection of the structure which was after-wards built thereon. All that the vendor did was to consent that the vendee should take possession of the premises. Undoubtedly he must be chargeable with knowledge of the fact that the vendee intended to improve the property. But that such knowledge was sufficient to prove a consent to the erection of any building which the vendee should finally conclude to put thereon seems to me to be in express conflict with the latest and best-considered cases in which this question has been discussed.
In De Klyn v. Gould (165 N. Y. 282) the Court of Appeals said: “ The owner’s interest in his real estate is not liable in every case in which to his knowledge, labor and materials are furnished for erections upon his real property or alterations in the existing erections.”
*604By section' 3 of the Lien Law (Laws of 1897, chap. 418). a lien is given for the,, improvement of real property “ with the consent, or at the request of the owner thereof.” And as was said in De Klyn v. Gould, “ This case, as well' as thé others it cites, indicates that mere acquiescence in the erection or alteration, with knowledge, is. not sufficient evidence of the consent which the statute requires. There must be something more, Consent is. not a vacant or neutral attitude in respect of a question of such material interest to the property owner. It is affirmative in its nature. It should not be implied contrary to the obvious truth, unless upon equitable principles the owner should be estopped from asserting the truth.”
Here there was no express consent to erect the building for which these lienors furnished materials. Such consent is sought to be implied from a simple permission given to a vendee to take immediate possession of the property; and.to construe such a consent to take possession of the property into a consent to erect buildings thereon would seem to me to be ,giving a construction to this contract that would go far beyond what was intended by either of the parties to it. ' There is no claim in this case that the plaintiff or the other lienors were misled in any way by any act of the appellant, or that they relied in. any way upon the provisions of the contract; and, as I view it, the case fails to show such a consent as the statute requires.
Van Brunt, P. J., concurred.
Judgment affirmed, with costs.