Knapp v. Brown.

specified repairs to, and alterations of, the building upon the premises, which were to be left upon the premises by him at the expiration of the term. That Brown employed the plaintiff to furnish the materials for, and to do the work, upon the repairs and alterations.

Section 1 of the act of 1863 (Lien Law for New York, Laws of 1863, p. 859, ch. 500), provides that any person who shall, thereafter, as contractor, &c., in pursuance of, or in conformity with, the terms of any contract with, or employment by the owner, or by or in accordance with the directions of the owner, or his agent, perform any labor, or furnish any materials toward the erection of, or in altering, improving or repairing of any building or buildings in the city of New York, on complying with section 6 of the act, shall have a lien for the value of such labor and materials, or either, upon the house and appurtenances and lot upon which the same shall stand, to the full value of such claim or demand, and to the extent of the right, title and interest then existing, of the owner of the premises.

Mrs. Jackson was the owner of the reversion of the premises, and would be entitled to the possession of the same, upon the expiration of the term of Brown. By the construction of this section, no lien can be created upon the interest of any person as owner of the premises, except such person shall, either himself, or by his agent, enter into a contract for doing the work, either express or implied, as the lien is only authorized as against owners so contracting for or employing persons to do the work. That this is the true construction, is manifest not only by the language of the section, but by section 14 of the act. The latter section provides, that for the purposes of the act, any person or persons who may have sold or disposed of his or their lands, upon an executory contract of purchase, contingent upon the erection of buildings thereon, shall be deemed the owner, and his vendee the contractor, and said

Knapp v. Brown.

owner shall, in all respects, be subject to the provisions of the act. This provision was necessary to secure to the material men, and others, to whom such vendee might become indebted in the construction of such buildings, the benefit of a lien upon the land, but it would have been unnecessary for this purpose, had the interest of the vendor been subject to the lien created by the act in favor of such persons, by virtue of section 1. Section 9 of the act leads to the same conclusion. That section provides that the contractor shall be personally liable to the lienor for the whole amount of his indebtedness, and the owner to the extent of the amount due by him to his contractor. This, although confined to the personal liability of the parties, shows that to authorize the lien, there must be an employment by the owner to create any liability against him under the act.

In the present case, there was no employment of the plaintiff by Mrs. Jackson. She was in no respect indebted to Brown for, or on account of, the work. She had conveyed to him an interest in the land, in part for the consideration of his doing the work. He alone employed the plaintiff to do the work. He was the owner, within the act, and his interest in the premises, only, is made subject to a lien by the act. This is no hardship upon the plaintiff. He, before entering into the contract, could readily have ascertained the extent of Brown's interest in the premises, and, consequently, the adequacy of the lien, as security. Mrs. Jackson did not appeal from the judgment entered upon the report of the referee. The court could not, therefore, consider the question whether the referee ought not to have awarded her costs upon the dismissal of the complaint as to her, nor is that question before this court.

The judgment affirming the judgment dismissing the complaint as to Mrs. Jackson, must be affirmed, with costs.

Mason v. Hickox.

MASON against HICKOX.

Supreme Court, Second District, Second Department; General Term, December, 1870.

PROMISSORY NOTE.-BONA FIDE HOLDER.

Where a collector of rents fraudulently transferred to the landlord a promissory note for a sum slightly exceeding the amount of rent which had been collected, and was payable immediately by him, he being allowed to retain the excess out of a subsequent collection,-Held, that the circumstances were not such as to put the landlord upon his guard, and that it was error, to hold, as matter of law, that he was not a bona fide holder for value.

Appeal from a judgment.

This action was upon a note dated September 17, 1868, payable in four months, for two hundred and ninety-three dollars and eighty cents, made by defendant, J. M. Keep, indorsed by the defendants T. N. Hickox, N. D. Redhead and D. C. Brown, to the defendant James D. Vail, and by him transferred to the plaintiffs Mason and Von Au.

Keep paid the money into court, and the defendants Hickox, Redhead and Brown (constituting the firm of T. N. Hickox & Co.) set up that they were the owners of the note. Vail did not answer.

The note was received by plaintiffs of Vail, in settlement of rents which he had collected for plaintiffs, and then, according to plaintiff's testimony, had in his possession, and a balance of fifteen dollars, which he was thereupon authorized to retain out of the rent to be collected the following month.

It was testified by defendant Hickox, that he had placed the note in Vail's hands to get discounted,

Mason v. Hickox.

which he said he could get done in New York or Poughkeepsie. This he failed to do, but, upon demand by Hickox, represented that the note was at the bank in Poughkeepsie. The first notice that T. N. Hickox & Co. had of the whereabout of the note was that it was held at the Metropolitan Bank, for collection.

On the trial, the court charged the jury that Mason and Von Au were not bona fide holders, on the ground that, as it was not customary for persons who employed persons to collect rents to receive notes in payment, the circumstances were such as to put them on their guard. Plaintiff excepted. The jury brought in a verdict for defendant, and plaintiff appealed.

Dana & Wust, for plaintiffs, appellants.

Chambers & Pomeroy, for defendants, respondents.

J. F. BARNARD, P. J.*-The court at the trial, fell into an error, in holding as matter of law, that the plaintiffs were not bona fide holders for the value of the note in question. Vail, from whom the plaintiff obtained the note, was indebted to the plaintiffs for rents collected, in the sum of two hundred and eightynine dollars, immediately payable. The note amounted to fifteen dollars more than the debt. The note was taken in settlement of the debt so due, and by allowing Vail to retain fifteen dollars out of the next month's collection of rent, to be made by Vail for plaintiff's, which sum was so collected and retained before the maturity of the note. This transaction, if done in good faith and without notice of the fraudulent diversion of the note by Vail, constituted the plaintiffs bona fide holders for value within the cases. The plaintiffs

* Present, BARNARD, P. J., and TAPPAN and PRATT, JJ.

People ex rel. Martin v. McCullough.

settled the claim against Vail, extended the time of payment, and advanced a new consideration.

There was nothing in the fact that Vail was in arrears thirty dollars for the rents due the preceding months, which, as a matter of law, made it the duty of plaintiffs to inquire as to the note. It does not appear that the thirty dollars had been collected during the month preceding the transfer of the note. Mason testified he was only indebted one floor for the month of October, which he had not collected.

The judgment must be reversed, and a new trial granted, costs to abide the event.

THE PEOPLE (ex rel. MARTIN) against McCULLOUGH.

Supreme Court, Second District; Special Term, October, 1871.

QUO WARRANTO.-TITLE TO OFFICE.

An action in the nature of quo warranto, to determine the title to a public office, will not lie before the commencement of the term of office.

The court can only give judgment of ouster; and this can only be done when an existing usurpation is shown.

Demurrer to complaint.

This action was brought by the People on the relation of Thomas J. Martin, and by the said Martin, as a plaintiff, against David B. McCullough and Frederick Kassner. The complaint alleged that at an election for officers, held in Middletown, Richmond county, FebN.S.−xI−9