Meyers v. Bennett.

contractor to proceed to erect the building, is but a finding that he did not attempt to repudiate or rescind it, but fully recognized the obligations of his testator. The obligations of his father, or of his estate after his death, were in no way superseded, altered or modified by that event. It is only by force of the devise to the defendant of the legal title, as trustee of the whole and remainder-man as to one-half of the property, that any personal obligation can be suggested. The contract was not for the personal services of the contractor nor was it of such a character as to be affected by the testator's death. The claims of the alleged sub-contractors and lienors in whose favor personal judgments have been rendered against the defendant, as also those of the lienors, William and Thomas Ritchie and Patrick Murray, which have been adjudged to exist as against the property on which the work was performed by them, or for which materials were furnished, wholly depend in the first instance upon the right of Edward Hall, the contractor.

The alleged liens were all imposed in September and October, 1872, which was three months after the death of James Gordon Bennett, the contracting owner. None of them, so far as established by the judgment, existed upon any debt personally created by the defendant as owner, but were all founded upon the contract made by the testator with Edward Hall.

The contract not being of such a character as to be affected by the testator's death, was one that continued, notwithstanding the death or transfer of the interest of either party, but no such personal assumption of any of its obligations by the defendant having been shown, the personal judg ments awarded against him cannot be sustained.

Ownership of the property by a contracting owner must, in my opinion, exist throughout performance of the original contract, and be concurrent therewith, in order to render the property liable for work done thereon, and authorize the imposition of a lien under the Mechanics' Lien Law of 1863. No lien can be created on the interest of any person as

Meyers v. Bennett.

owner of the premises, except he has himself, or by his agent, entered into the contract under which the work was performed (Muldoon v. Pell, 54 N. Y. 269; Knapp v. Brown, 45 N. Y. 207). Should a third party, disconnected with the title, upon his own responsibility, contract for such work, the law contemplates no interference with the title of the owner of the property, nor does it accord to any one any right of lien therefor. It is the title of the contracting owner only that is made the subject of any such liens, and it can only be made effectual as against such title as existed in him when the lien of the contractor or sub-contractor is imposed.

Therefore, work done on premises in pursuance of a contract with a prior owner is not the subject of lien proceedings. under the act of 1863 as against a succeeding owner, and unless such lien has already been imposed before any transfer of the title is effected by deed or operation of law, any proceedings thereafter instituted under the act are entirely ineffectual, even to afford any right to a personal judgment between any of the parties to the contract.

The act of 1863, as amended by chap. 752 of the Laws of 1866, only authorizes a sale of the right, title and interest which the owners shall have in the premises at the time of the filing of the notice of lien (Laws 1866, c. 752, vol. 2, p. 1634). The amendment materially varied the rights of lien created by the act of 1863, which was upon the house or building and the appurtenances, and the lot on which the same should stand, notwithstanding any sale or transfer made after the commencement of the work or furnishing of material. (L. 1863, c. 500, §1.) This, as remarked, has reference to the contracting owner, and not to subsequent purchasers who have succeeded to the title before the lien was created, even if they have assumed payments of the claims (see cases cited in Guernsey's Mech. Lien Law, § 89 to 92; Quimby v. Sloan, 2 E. D. Smith) 594; and it is the fourth proposition affirmed by this court in the case of Bailey v. Johnson (1 Daly, 61), supported by numerous authorities therein cited.

The death of the testator and contracting owner, and his devise of the premises to the defendant upon trusts, which

Harley v. The Eleventh Ward Bank.

have been accepted, constituted the latter a purchaser in good faith with a title entirely distinct from that of his testator. Any inchoate right, either to the lien or to its enforcement by proceedings in this court, abated by the testator's death. (Leavy v. Gardiner, 63 N. Y. 624). The trustee was without any authority to enter into any such contract or create any lien upon the premises in question (part of the trust estate) for the purpose of erecting buildings thereon.

Under these views I am of opinion the judgment should be reversed and a new trial ordered, with costs to abide the event.

JOSEPH F. DALY, J., concurred.

Judgment reversed and new trial ordered, with costs to abide the event.

GEORGE HARLEY, Respondent, against THE ELEVENTH WARD BANK, Appellant.

(Decided February 4th, 1878.)

Where the plaintiff deposited with the defendant for collection a sight draft which the defendant sent to its agent, a corresponding bank, for collection, and such correspondent, before the draft had been collected, but supposing that it had been, credited the amount thereof to the defendant, who thereupon gave credit therefor to the plaintiff, and the correspondent bank afterwards having discovered its mistake charged back the amount of the draft to the defendant, and the plaintiff, being notified of these facts, refused to take back the draft or have the amount of it charged to his account, and the defendant thereupon accused its correspondent with delay in not returning the draft, and stated that it would be compelled to look to it for payment of it, and afterwards rendered the plaintiff an account without charging the draft back to him, and continued for two years to render him accounts in the same way,-Held, that there was an account stated in respect to the draft, which precluded the defendant from denying its liability to the plaintiff therefor.

APPEAL by the defendant from a judgment of this court, entered upon the report of a referee appointed to hear and determine the issues.

Harley v. The Eleventh Ward Bank.

The action was brought by the plaintiff, who had been a dealer and depositor with the defendant, to recover from it $885 alleged to be due as the balance unpaid of an account stated between the plaintiff and defendant of $3,168 95, made on May 8, 1875.

The defendant answered that in the account stated the sum of $800 had been erroneously, and by a mutual mistake of the parties, credited to the plaintiff.

The facts upon which the defendant sought to have this. sum of $800 deducted from the balance shown by the account in favor of the plaintiff are stated in the opinion.

F. N. Bangs, for appellant.

Edward Patterson, for respondent.

LARREMORE, J.-It appears from the testimony that plaintiff was a dealer and depositor of moneys with the defendant. That on November 12, 1872, he deposited with the bank for collection a sight draft for $800, drawn by him on one J. W. Martin, of Andover, Connecticut, who was indebted to plaintiff in excess of that amount. The defendant forwarded the draft to its correspondent and agent, the Yale National Bank at New Haven, Connecticut, which forwarded it to the Rockville National Bank in said State, which gave it to the Adams Express Company for collection. An agent of that company saw Martin as he was about entering the cars at Andover and told him he had the draft, whereupon Martin requested the agent to hold the draft until his return within a day or two, and he would pay it. The Yale National Bank in sending its semi-monthly statement to defendant up to November 15, 1872, credited the amount of the draft, supposing it had been paid. The defendant thereafter, on November 18, 1872, believing the draft to have been paid, credited the amount to plaintiff's account. The draft was not paid, and was returned to defendant by the Yale National Bank, December 3, 1872, with notice of its nonpayment. It was returned by defendant's cashier to the

Harley v. The Eleventh Ward Bank.

Yale National Bank, December 4, 1872, with a letter containing the following statement: "You credited us with the amount of the draft as per your statement of accounts November 15, and we paid the money to the party here, who declines to make it good in consequence of the length of time after the payment to him. There has been a great delay somewhere which I would be pleased to have explained. Send the draft on at once and urge its payment."

About December 17, 1872, the Yale National Bank returned the draft with a letter of explanations of the delay, and also sent its semi-monthly account to defendant up to December 15, 1872, wherein it appeared that the amount of the draft had been charged back. The plaintiff was notified of these facts, but refused to take up the draft or to be charged with the amount thereof. The defendant then wrote the Yale National Bank, December 18, 1872, disputing the amount charged on account of the draft, and stated: "The draft was presented and not paid, and should have been returned at once; we will be compelled, under the circumstances, to look to you for the payment of it."

With full knowledge of all the facts, defendant, on December 27, 1872, accounted with plaintiff, showing a balance due him of $6,715 65, in which sum the amount of said draft was continued and allowed. And in each subsequent accounting between the parties up to and including May 8, 1875, the plaintiff was allowed the credit of the draft, and the question now raised is, whether the defendant is not estopped from impeaching the correctness of an account after so long an acquiescence in its validity.

If there was any doubt as to plaintiff's liability, it was settled in his favor by the defendant. With full knowledge of all the facts, defendant accepted and acted upon plaintiff's theory of the case, and sought to charge its own agent with the loss. In its letter of December 18, 1872, to the Yale National Bank, such intention is plainly expressed. No fraud or mistake is shown by which the defendant was misled or deceived. (Lockwood v. Thorne, 11 N. Y. 175; 18 N. Y. 285.)