Opinion
June, 1929.
Judgment reversed upon the law and the facts, with costs, as to the two defendants Blumenthal and the two defendants Zion, and judgment directed for plaintiff foreclosing its mechanic's lien against the interests of said defendants in the amount fixed at Special Term, with costs. The evidence herein established the active consent of these defendants to the doing of the work upon their property by the plaintiff, and, therefore, plaintiff's lien attached under Lien Law, section 3. ( National Wall Paper Co. v. Sire, 163 N.Y. 122.) Rice v. Culver (172 id. 60) does not bar such a holding under the facts herein. The agreement with respect to the alleged collateral contained an enforcible provision which conditioned the agreement in this respect upon the continued existence of the statutory lien in favor of the plaintiff. This provision bars any assertion by the defendant owners of waiver of the statutory lien on the part of the plaintiff. The authorities in Firth v. Rehfeldt ( 30 App. Div. 326) recognized the right to condition arrangements with respect to collateral upon the reserving in the contractor the benefits of the statutory lien. The statutory lien may only be deemed to have been constructively abandoned when the collateral consists of an inconsistent security and the agreement therefor is without any condition or reservation respecting the statutory lien. Findings of fact and conclusions of law inconsistent with this decision are reversed and new findings will be made in accordance herewith. Lazansky, P.J., Kapper, Hagarty, Seeger and Carswell, JJ., concur. Settle order on notice.
Since amd. by Laws of 1929, chap. 515, effective Oct. 1, 1929, but excepts pending actions. — [REP.