25 that the risk of the destruction of the building by fire is upon the owner.2 In the absence of such a provision however, the lien will not be enforcible.26 § 102. Change in Ownership.-Where a lien has once attached, a mere change in ownership in the building during the progress of the work does not constitute a new commencement of building operations and does not affect the lien already attached.27 § 103. Death of Owner.-In the event of the death of the owner, the death operates, in some jurisdictions, to defeat the lien right,28 while in others the lien may still be enforced.2 29 § 104. General Assignment.-The right to a lien has been held to be unaffected by an assignment for the benefit of creditors where the assignment is subsequent to the filing of the lien; 30 and in Ohio, even where the assignment has preceded the filing of the lien the continuing validity of the latter has been recognized.31 § 105. Consent of the Owner.-The facts already noted under another heading 32 in regard to 25 Sontag v. Brennan, 75 Ill. 279. 26 Wigton's Appeal, 28 Pa. St. 161. 27 Pennock V. Hooper, 5 Rawle (Pa.) 290; Gordon v. Torrey, 15 N. J. Eq. 112. 28 Tubridy v. Wright, 144 N. Y. 519, affirming 7 Misc. N. Y. 403; Crystal v. Flannelly, 2 E. D. Smith N. Y. 583; Hoff's Appeal, 102 Pa. St. 218. 31 Hart v. Globe Iron Works, 37 Ohio St. 75—compare, Noyes v. Burton, 29 Barb. N. Y. 631. 32 See $88, p. 157. the necessity and effect of the owner's consent are applicable also to the lien of the contractor or suhcontractor, or other similar lienors. CHAPTER IV THE LIEN OF THE SUBCONTRACTOR § 106. Nature of Lien.-The natural effect of the extension of the lien doctrine has been to protect the subcontractor as well as the contractor, and in many cases the subcontractor has been given a direct or subordinate lien by statute.1 § 107. The Pennsylvania Doctrine.-The Pennsylvania courts especially have led in the movement to give the subcontractor a direct lien on the property irrespective of the rights of the contractor.2 108. The New York Doctrine.-In New York State the courts have not adopted the idea of a direct lien for the subcontractor, but have 1 Pendleburg v. Meade, 1 E. D. Smith N. Y. 728; Perry v. Potashinski, 169 Mass. 351; Merrigan v. English, 9 Mon. 113; Ballon v. Black, 21 Neb. 131; Berger v. Turnblad, 98 Minn. 163; Vaughan v. Ford, 162 Mich. 37; Green v. Williams, 92 Tenn. 220; Central Trust Co. v. Richmond, etc., Co., 68 Fed. 90; Crane Co. v. Hanley, etc., Co., 53 Mo. Appeals 540; Seaman V. Biemann, 108 Wis. 365; Hatch v. Fansher, 15 R. I. 459, also holding (under the Rhode Island statute) that a lien in favor of a subcontractor for labor is inIclusive of the labor of his employees, but not of materials furnished by him; Knowlton v. Ellis, 12 Phil. (Pa.) 396; Huttig, etc., Co. v. Denny Hotel Co., 6 Washington 122. 2 Linden Steel Co. v. Rough Run Manufacturing Co., 158 Pa. St. 238; Willey v. Topping, 146 Pa. St. 427; White v. Miller, 18 Pa. St. 52; but compare Schroeder v. Galland, 134 Pa. St. 277. given him a lien based upon the doctrine of, or more exactly speaking in the nature of, subrogation, and, as a condition precedent to awarding any lien to the subcontractor, require that the contractor himself shall be entitled to a lien, and that in any event there shall be monies due from the owner to the contractor to which the subcontractor may be subrogated.3 Under the subrogation doctrine as exemplified in the New York cases, the owner is afforded a protection which is not given him under the doctrine of a direct lien for the subcontractor as exemplified in the Pennsylvania cases. Thus, under the New York doctrine, where the principal contractor fails to complete, while the right of the subcontractor to his lien is not affected, the extent to which the lien can be enforced is very materially affected, in that, under these circumstances, the New York courts will allow the subcontractor to enforce his lien to the extent merely of the amount due to the contractor from the owner at the time when the lien is filed, or at the time when the subcontractor gives proper notice of his claim.* Applying the New York doctrine to the usual provision in a building contract which provides 8 La Pasta v. Weil, 20 Misc. (N. Y.) 554, reversing 20 Misc. (N. Y.) 10; Kirschner v. Mahoney, 96 N. Y. Supp. 195; and see, contrasting Pennsylvania doctrine of direct lien and New York doctrine of subrogation, Prince v. Neal Millard Co., 124 Ga. 892; Mer rigan v. English, 9 Mon. 113; Hunter v. Truckee Lodge, etc., 14 Nev. 24. Foshay v. Robinson, 16 N. Y. Supp. 817, affirmed 137 N. Y. 134; and to same effect see Wright v. Pohls, 83 Wis. 560; compare N. J. Steel, etc., Co. v. Robinson, 33 Misc. (N. Y.) 361. 5 that payment shall be made in installments, on account of the total amount, and that the balance of the stipulated price shall be paid upon completion, the effect is to prevent the subcontractor from enforcing a lien against the balance retained under such a provision, in the event that the contractor fails to complete. If the owner, however, elects to come in and complete the work under a contract provision allowing him so to do, and does this, shortly before an installment is to fall due to the contractor, a subcontractor or material man may enforce a lien to the extent of the amount of the installment so to become due, less such amount as may be necessary to complete the work to the point when the installment would become due, less also such sum as may be required to make good defective work; and this rule holds true despite the fact that there may be nothing due to the contractor, on the completion of the building, by reason of his failure to complete." § 109. Failure of Contractor to Complete.Work done by the subcontractor for the owner, after the abandonment of the contract by the contractor, gives to the subcontractor the right to a lien for the full amount of the value of such work, this being a new undertaking as between himself and the owner, and entirely separate from the work done by him theretofore under his contract 5 Kelly v. Bloomingdale, 19 N. Y. Supp. 126, affirmed, 139 N. Y. 343; Brainard v. County of Kings, 84 Hun. N. Y. 290, affirmed 155 N. Y. 538. 6 Foshay v. Robinson, 16 N. Y. Supp. 817, affirmed 137 N. Y. 134. |