Opinion
October 25, 1954.
Present — Adel, Acting P.J., Wenzel, MacCrate, Schmidt and Beldock, JJ. [See post, p. 1049.]
Action to foreclose a mechanic's lien for work, labor, and materials furnished towards the erection of a gasoline station, pursuant to a contract with the lessee of the unimproved property in question, with the consent of defendant, the owner. Before the station was substantially completed, plaintiff had ceased construction upon the order of the lessee, who failed to pay for the work done. The trial court found that plaintiff had failed to establish that the work was done "with the consent or at the request of the owner" within the meaning of section 3 Lien of the Lien Law, and dismissed the complaint. Plaintiff appeals from the judgment entered thereon. Judgment unanimously affirmed, with costs. While we are of the opinion that the evidence did establish the required consent of the owner to the erection of a gasoline station (cf. Jones v. Menke, 168 N.Y. 61), since he did not cause the failure substantially to complete the contract he may not be held ( New York Elevator Supply Repair Co. v. Bremer, 74 App. Div. 400, affd. 175 N.Y. 520; McNulty Bros. v. Offerman, 152 App. Div. 181; Mitchell v. Dunmore Realty Co., 126 App. Div. 829).