Opinion
June 1, 1959
Present — Wenzel, Acting P.J., Beldock, Murphy, Ughetta and Kleinfeld, JJ.
In an action to foreclose a purchase-money mortgage, the appeal is by a mechanic's lienor from an order granting a motion to strike out its answer and awarding summary judgment to respondent. Improvements to the property were made by the vendees in possession prior to the passing of title to the grantee, defendant Twelve Linden Corporation, with the knowledge of the seller and grantor, respondent herein. The deed and purchase-money mortgage, however, were executed and recorded about four months prior to the filing of appellant's notice of lien. Order unanimously affirmed, with $10 costs and disbursements. The word "consent" as used in section 3 Lien of the Lien Law has a limited application. There is a marked distinction between the passive acquiescence of an owner in that he knows the improvements are being made, improvements which in many cases he has no right to prevent, and his actual and express consent or requirement that the improvement shall be made. It is the latter that constitutes the consent mentioned in the statute. ( Rice v. Culver, 172 N.Y. 60; Ausable Chasm Co. v. Hotel Ausable Chasm Country Club, 263 App. Div. 486.)