Miller v. Clark

2 E.D. Smith 543

• Court: New York Court of Common Pleas
• Decided: December 15, 1854
• Status: Published

Opinion

By the Court. Daly, J.

It was decided by this court, in McDermott v. Palmer, that an owner of land who agrees, under what is usually denominated a building contract, to advance to the builder sums of money, from time to time, to be applied towards the erection of a building on the land, and when the building is finished, to convey the land to the builder, in fee, receiving from him a mortgage for the advances made, is not the owner of the building within the meaning of the lien law. Our decision in that case (which was made when the decisions of the Common Pleas were subject to review in the Supreme Court) was reversed by that court; (11 Barbour, 9;) but this court having made the same decision in Loonie v. Hogan, an appeal was taken to the Court of Appeals, and the decision of this court sustained. (See 6 Selden’s notes of cases in Court of Appeals, April, 1854, p. 42.

(a) That case arose under the act of 1830, and in Gay v. Brown, (1 E. D. Smith, 725,) the same construction was given to the act of 1851, under which the present case arises. This is decisive of the question of Clark’s liability in this suit. There are several other grounds stated in the notice of appeal, upon which this judgment should be reversed, but the ground above stated being conclusive, it be comes unnecessary to discuss them.

Judgment reversed.

See, also, “ Notes of oases decided in the Court of Appeals, April 18, 1854,” No. 6, p. 42, prepared by Mr. Selden. The fourth volume of his regular reporte—being the last as yet published by him—concludes with the decisions of October, 1858; while the first publication of his successor, Mr. Keenan, commences with those of June, 1854. As respects this case, the hiatus is well supplied by the elaborate report in the Legal Observer, which is copied in the closing pages of this volume.