Jackson v. Egan

138 A.D. 505, 123 N.Y.S. 297, 1910 N.Y. App. Div. LEXIS 1566

Opinions

Pee Cubiam :

While injustice may result from affirming these' orders, we can see no escape therefrom. The statute relating to mechanics’ liens defines the words “ material man ” and “ contractor.” (Lien Law [Gen. Laws, chap. 49; Laws of 1397, chap. 418], § 2, revised into Lien Law [Consol. Laws,.chap. 33: Laws of 1909, chap. 38], § 2.) If we transpose the order in which thes.e definitions appear therein, it may assist in understanding it. The term material man “ means any person other than a contraetor who furnishes material” for the improvement of real property. This would indicate that a person who furnishes material may, under certain circumstances, be a contractor. The term contractor “ means a person who enters into a contract with the owner of real property for the improvement thereof.” Therefore, if the person who furnishes material also agrees with the owner of real property to use that particular material in the erection of any structure upon it, he ceases to be simply a material man and becomes a contractor. We do not claim that this exhaustively points out the difference between these two classes, but it is sufficient for the purposes of this. case. De Long and the Brooklyn Builders’ Supply Company were, therefore, material men, and Robins- was a contractor. As De Long’s lien was prior in point of time to that of the Brooklyn Builders’ Supply Company, he is entitled to the surplus, money -as against it, and because he is a mate rial man and not a contractor he has a preference over Eobins, notwithstanding Eobins’ lien was prior in point of time to his.