in Foushee v. Grigsby, 12 Bush (Ky.) 75; Ames v. Dyer, 41 Maine 397, was a case arising under a statute giving a lien for labor performed and materials furnished 'for or on account of any vessel building or standing on the stocks,' etc., and the attempt was to establish a lien for a mould constructed and used to form the timbers for a ship. The Court said that 'the plan of a house, the model of a ship, the moulds by which its timbers are to be hewed, may be necessary and even indispensable, but they do not enter into any structure so as to be a part of its materials, and cannot be regarded as within the proviso of the statute.' "The preparation of plans and specifications is a preliminary to the construction of a building, and is often merely tentative. It may or may not be followed by a construction according to the plans. It is seldom that either the external or internal form of a building is determined upon, or that its identity is anything more than an indefinite mental conception until after the plans have been completed. We are of opinion that this professional work of the architect, in bringing into existence the definite form and conception of a building which may be erected if the landowner adopts the plan, is not 'labor performed or furnished . . . and actually used in the erection' of a building within the meaning of our stat ute. "We are of opinion that the work of supervision which is done directly upon the building, and which is partly physical, but in its more important part mental, may be the subject of a lien under our statute, even if done by the same person who prepared the plans as an architect." 12 As a logical development of the Massachusetts doctrine it is further held in that State that, where the contract is entire and not separable, and the amount due to the architect for services rendered 12 Mitchell v. Packard, 168 Mass. 467. in the supervision of the work, as distinguished from services rendered in the preparation of plans and specifications, can not be determined, a lien even for the work of supervision will be refused.13 § 84. The Doctrines Contrasted-Discussion. -While the New York and Massachusetts doctrines have been developed under statutes which vary in their provisions and phraseology, and while under the Massachusetts statutes the rule laid down by the courts of that State may be taken as legally correct, the broader interpretation made possible by the provisions of the New York statutes, and by the interpretation thereof by the New York courts, seems certainly entirely proper and equitable. It is difficult to understand why an architect who has devoted his best effort and many hours of his time to the preparation of plans and specifications, and who has superintended the work, should not be allowed adequate protection under the lien laws, while that protection is accorded to the ordinary contractor or material man. The plans and specifications of the architect, in a very real sense, enter into and make possible, the improvement of the property. As a matter of good sense and of equity, it would indeed seem that he should ultimately be accorded a lien for the preparation of plans and specifications irrespective of whether he has superintended the work or not, provided that the work has been carried out in accordance with his plans and in 13 Libbey et al. v. Tidden et al., 192 Mass. 175. accordance with the specifications prepared by him. §85. Reference to Particular Statute Essential. -It must be borne in mind always that the allowance or non-allowance of the lien is based primarily and fundamentally on the language of the particular statute involved. Under some statutes a lien may be allowed for work and materials only; under others, the statute may include alterations; and yet others may specify that the lien is allowed for the erection of the building. In New Jersey, for instance, a lien has been refused for a mere alteration, but has been allowed for an addition to a building,15 while in New York the courts inquire primarily whether or not the improvements have become a part of, and incorporated in, the property; if they have, the mere fact that they are designed for special purposes, such as their use in outfitting the premises for the business purposes of the tenant, does not affect the right to the lien. 16 14 § 86. Lien by Contract.-While it is true, as has been noted, that the lien is purely a creature of statute and dependent upon the statute, the owner may yet create mechanic's lien rights, or perhaps, more exactly speaking, rights of a character similar to a mechanic's lien, by contract, between him and the architect, or other person furnishing the labor or material. I say that it is 14 Updike v. Skillman, 27 N. J. L. 131, holding the addition of an extra story to a building an alteration merely. 15 Updike v. Skillman, 27 N. J. L. 131, supra. 16 Mosher v. Lewis, 10 N. Y. Misc. 373. more exact to speak of these rights, when created thus by contract, as rights similar to mechanics' lien rights, for the reason that the true mechanic's lien is always a creature of statutory enactment, rather than of private contract or agreement. 17 § 87. Lighting Fixtures.-The law was somewhat slow in recognizing the right to a lien for lighting fixtures as distinguished from improvements more strictly permanent, for the reason that lighting fixtures are, ordinarily, of such character that they may be easily separated from the realty proper, and were not, therefore, at first, nor until comparatively recently, considered proper bases for a mechanic's lien. Gradually the strictness of the rule in this connection was relaxed, however, and a determination finally established, that in the case of specially designed electric lighting fixtures applicable to a special purpose and especially made to harmonize with, or become a definite and important part of, the structure proper, a lien would be allowed.18 The New York Legislature in 1914 took the last radical step in the development of the lien doctrine in the matter of lighting fixtures by specifically providing, that a lien might be had for services rendered in furnishing and installing electric lighting fixtures. In making this provision, the statute made no distinction between specially de 17 Lippincott v. Yorke, 86 Tex. 276. 18 Wahle, etc., Co. v. 59th St. &Madison Ave. Co., 153 N. Y. A. D. 17; Embury v. 42d St. & signed and ordinary fixtures and as the law now stands, therefore, this distinction has been abolished and a lien may be had for the manufacture and installation of fixtures generally. The terms of the amendment are as follows, the portion italicized being the matter added by the amendment of 1914: "Improvement. The term improvement, when used in this chapter, includes the erection, alteration or repair of any structure upon, connected with, or beneath the surface of, any real property and any work done upon such property, or materials furnished for its permanent improvement, and shall also include any work done or materials furnished in equipping any such structure with any chandeliers, brackets or other fixtures or apparatus for supplying gas or electric-light.” " 19 § 88. Consent of Owner.-By reason especially of the modern development of apartments, office buildings and similar properties, the importance of the right to a lien, where the work has been done for a tenant and not merely for the owner direct, has been emphasized more and more of recent years. Where the work is done at the request of a tenant, the lien may be enforced, if it be shown that the owner has consented to and approved the doing of the work in the expectation that he will derive benefit therefrom,20 and this irrespective of whether there is or is not a direct contract relationship between the owner and the contractor. 19 New York Laws, 1914, ch. 506. 20 Kerwin v. Post, 120 N. Y. A. D. 179. |