This action is brought against the defendant, as owner of certain lots, on which houses were built by the plaintiff. The defendant is sought to be made liable under the provisions of the mechanics’ lien law.
The referee finds that the defendant was the owner of the lots on Thirty-sixth street. That Moses Larkin applied for a contract of sale of the lots, which the defendant declined to give, but made a parol agreement to convey to Larkin the lots upon payment to him of a fixed price.
That the defendant advanced to Larkin his notes to aid in the erection of the buildings.
That Larkin died insolvent during the progress of the buildings.
That no express contract for the erection of the buildings was proved.
*670That the defendant sold the lots and the partially erected buildings, and received payment therefor, but that such payment did not repay the advances made by him and the price of the lots, with the moneys necessary to complete the same.
And he finds, as matter of law, that Larkin was a contractor with the defendant for the erection of the buildings, and that the work was done by the plaintiff in conformity with the contract with the defendant, and he renders judgment for the plaintiff.
First. The judgment is clearly erroneous. The statute of 1855, page 760, sec. 1, directs, that in such a case, the judgment shall direct the sale of the interest of the owner in the land and premises at the time of filing the notice of lien. Where the action is brought by a person doing the work for a contractor against the owner, there can be no personal judgment against the owner, but a mere foreclosure of the lien upon his interest in the land, with a judgment directing the sale of such interest to pay the amount so found to be due.
The judgment entered up is a personal judgment against the owner, and is of course erroneous, and must be reversed.
But as this only applies to the form of the judgment, which might be remedied by the entry of a new judgment on the referee’s report, it is necessary to examine the question of the defendant’s liability in any event under the facts proven.
Second. The referee has found, as matter of fad, that the buildings were not erected under any express contract, and yet he finds, as matter of law, that Larkin was a contractor with the owner for the erection of the buildings, and that the work was done in conformity with the terms of the contract. I am at a loss to see how work can be done in conformity with the terms of a contract, when no express contract is proven.
With the exception of the contract for the sale of the lots being by parol, this case does not differ in principle from others that have been before this court. In Doughty v. Devlin, 1 E. D. Smith’s Rep. p. 625, we held that the right *671of a sub-contractor to recover against the owner depended upon the fact of the work done by him having been in conformity with a contract made by the owner for the erection of the building. In Loonie v. Hogan, N. Y. C. P., 1 E. D. Smith, p. 652, note, it was held that an owner agreeing to sell lots to another, was not chargeable under the lien law.
And in the opinion in the Court of Appeals sustaining this decision and overruling the case in the Supreme Court, (11 Barb. S. C. p. 9,) Judge Denio says: “ The money which the plaintiff seeks to obtain is money agreed to be loaned, and not a debt agreed to be paid. “It is only the latter to which the statute refers. “ If public policy or the just interests of the mechanic require that the remedy should be extended so as to embrace the case of money agreed to be advanced otherwise than by a party contracting to have a building erected for himself, it is for the legislature to provide for such cases by new enactments.” Although this case arose under the act of 1880, still the provisions of that statute are similar, so far as relates to this question, to that of 1851; and in Gay v. Brown, 1 E. D. Smith, 725, the principles of that decision were applied to a case arising under the statute of 1851, and the same construction given to the latter.
In the case last mentioned, Judge Woodbuff says: “He (the plaintiff) did not prove that the work performed by him was done in conformity with any contract with the defendant. “ This was essential to his right to recover. “ The contract which he offered showed that the defendant was not the owner within the meaning of the law.”
The referee appears to have based his decision upon the supposed illegality of the contract of sale by the owner to Larkin. Although that contract (being by parol) could not have been enforced at law if the owner refused to fulfill it, still there was nothing in the contract rendering it illegal. If the parties were willing to carry it out, no other person could object thereto, and no other person could take advantage of the omission to commit the contract to writing, so as to charge the defendant, under the mechanics’ lien law, as *672the owner of a building erected on the land by Larkin, for his own use, on the faith of the parol agreement, and in the consequent expectation of receiving a conveyance of the premises in pursuance thereof.
And even conceding that the contract for the sale of the lots was entirely void, still the difficulty remains. There was no contract between Larkin and the defendant that Larkin should build houses on the lots for the defendant, nor is it proven that the work the plaintiff claims for was in conformity with the terms of any contract whatever.
Where does it appear in the evidence in this case, that, by any contract with the defendant, hot air furnaces were to be put in any of the houses ? If we could imply the existence of a contract, because the parol agreement to sell the lots was not binding, (which is by no means conceded,) still there is no evidence to show that these furnaces were not ordered by Larkin on his own suggestion, and formed no part of the original plan on which the houses were to be erected.
It'is just as necessary that the work claimed for by a subcontractor should be done in conformity with the contract with the owner, as specified therein, as it is to show that such a contract existed.
Neither of these facts was proven in this case,-and it was necessary to prove both to sustain the plaintiff’s cause of action.
By the statute, the liability of the owner is limited to the amount stipulated to be paid in the contract. Where there is a mere implied contract to pay what the work is worth, without any sum or price, the statute would not apply.
It is said that Paine might have been held liable to Larkin for the value of these houses if the contract for the sale of the lots was void, in consequence of his seeing the buildings in progress without objection and advancing money therefor. In this case, however, that could not be the result. The facts proven would prevent any such implied agreement, because it is in evidence that there was a positive agreement that the buildings should belong to Larkin, and that the land *673should be conveyed to him on payment therefor. It is immaterial whether such contract of sale was valid or not. It is enough to prevent any implied agreement being found that the defendant would pay for them. No such agreement could be implied in contradiction to an express agreement to the contrary.
The report of the referee on this point is erroneous, and upon both grounds stated above, the judgment should be reversed.
Judgment reversed.