CHAPTER II

THE LIEN OF THE ARCHITECT

§ 80. Development of Doctrine.—Enough has been said of the history of lien legislation to make clear why it was that under the early statutes, and the early conception of the purposes and effect of lien legislation, an architect could not avail himself of the advantages of a mechanic's lien.1

Under the modern extension of the lien doctrine, however, an architect has, quite properly and very generally, been considered as coming within the limitations and qualifications laid down by the various State statutes. There is found, nevertheless, a natural and considerable divergence of opinion in the laws of the different States as to the extent of the lien to which he is entitled, and the character of the work required to qualify him as a proper lienor.

The New York courts in construing the provisions of the Lien Law have been liberal in interpreting the meaning of the term laborer, as there applied, and have held that this term applies to skilled, as well as to unskilled, labor, and includes the professional services of architects.2

1 See §§ 74 and 75.

2 Rinn v. Electrical Power Co., 3 N. Y. A. D. 305; Thomson-Starrett Co. v. Brooklyn

Heights Realty Co., 111 N. Y. A. D. 358; Stryker v. Cassidy, 76 N. Y. 50, reversing 10 Hun. (N. Y.) 18.

As early as January, 1879, the Court of Appeals of New York, in a case arising under a mechanic's lien law of 1862, stated that:

"The general principle upon which the lien laws proceed, is that any person who has contributed by his labor, or by furnishing materials to a structure erected by an owner upon his premises, shall have a claim upon the property for his compensation.

"The dealer who furnishes the paints and oils, the ordinary workman who applies them or the artist who uses his skill and taste in executing a mural painting, are alike protected by the act. And an architect who makes the plans and supervises the erection of a building is within the words and reason of the law." 3

§ 81. Importance of Supervision.-The decisions in the various States bearing upon the right of the architect to the benefits of the lien laws vary considerably, according, largely, to the tendencies of the various jurisdictions in regard to lien legislation. But there is one very general element which has been found to exist in the majority of the cases where liens have been allowed, and that is the element of supervision. In a great number of cases decided in New York, New Jersey, Pennsylvania, and in the Federal and other jurisdictions this element is found in each instance. In all of the cases last cited the

4

3 Stryker v. Cassidy, 76 N. Y. 50, supra.

4 Hubert v. Aitken, 15 Daly (N. Y.) 237; Stryker v. Cassidy, 76 N. Y. 50; and see Gurney v. Atlantic, etc., Co. 58 N.

Y. 358, distinguishing Ericsson v. Browne, 38 Barb. (N. Y.) 390; Mutual Benefit, etc., Co. v. Rowand, 26 N. J. Eq. 389, reversed on other grounds, 12 C. E. Green (N. J.) 604. Bank

lien of the architect was upheld, but in all, as noted, the element of supervision was present.

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In some instances an exception to the general rule has been applied and the lien of the architect has been allowed where supervision was lacking; but again, even where the architect has prepared plans and specifications and given general directions to the builder, where it appears that the building has been erected under the special supervision of the builder, a lien has been refused."

Where there occurs a change of ownership of the property in connection with which the work is done, and it is agreed by the new owner that certain additional work shall be done under the supervision of the architect of the building, the latter having given his services to this work, is rightly held to be entitled to a lien, irrespective of the transfer of title to the building."

§ 82. The New York Doctrine.-In New York, until the amendment of the Lien Law in 1916, it was definitely determined that the architect was

of Penn. v. Gries, 35 Pa. St. 423; Phoenix Furniture, etc., Co. v. Put-In Bay Hotel Co., 66 Fed. 683; Johnson V. McClure, ΙΟ N. M. 506; Arnoldi v. Gouin, 22 Grant's Chan. (Ontario) 314; Taylor v. Gilsdorff, 74 Ill. 354; Knight v. Norris, 13 Minn. 473; Friedlander v. Taintor, 14 N. D. (104 N. W. 527), 393; Field v. Consolidated Water Co., 25 R. I. 319; Von Dorn v. Mengedoht, 4I Neb. 525; Mulligan V. Mulligan, 18 La. Ann. 21; Dyer

not entitled to a mechanic's lien for the preparation and furnishing of plans and specifications, unless, in addition, he supervised the work done thereunder. Where, however, the architect supervised the work, done pursuant to the plans and specifications which he had prepared, it was, even prior to the 1916 Amendment, the clearly established doctrine of the New York courts that he would be allowed to recover, not merely for the work done in his capacity as supervisor, but for the preparation of the plans and specifications as well. For his disbursements and expenses incident to supervision the architect may recover in full.10

The New York law gives to a person performing labor or furnishing materials "for the improvement of real property," with the consent or

8 Swasey v. Granite, etc., Co., 158 N. Y. A. D. 549; Rinn v. Electric Power Co., 3 App. Div. (N. Y.) 305, distinguishing Stryker v. Cassidy, 76 N. Y. 50, which in turn distinguished Aitken v. Wasson, 24 N. Y. 482, and Coffin v. Reynolds, 37 N. Y. 640, and reversed Stryker v. Cassidy in the court below, 10 Hun. (N. Y.) 18; Aimes v. Dyer, 41 Me. 397, where an architect sued for the value of work performed in preparing a set of moulds for the construction of a ship, and for materials used in such construction, and the court held that under the Maine statute allowing a lien for materials fur

nished and labor performed, a prepared plan of a house, or a model of a ship, or a mould by which the ship's timbers were to be formed, did not enter into the structure in such manner that they could be regarded as falling within the terms of the statute and see Bank v. Gries, 35 Pa. St. 423.

9 Embury v. 42d St. & Madison Ave. Co. et al., N. Y. L. J. April 16th, 1915; Spannhake v. Mountain Construction Co. et al., 159 A. D. (N. Y.) 727; and see Swasey v. Granite, etc., Co., 158 A. D. (N. Y.) 549, supra.

10 Rinn v. Electric etc., Co., 3 A. D. (N. Y.) 305, supra.

at the request of the owner or his representative, a lien on the property for the services and materials performed or furnished. By the Amendment of 1916, the section of the law defining the meaning of the term "improvement," and providing in general what the term, as used in the law, should include, provided specifically that it should: "also include the drawing by an architect or engineer, of any plans or specifications which are used in connection with such improvement."

In accordance with the doctrine adhered to by so many states, that the element of supervision must be present, if the lien is to be supported, it has been held that where plans and specifications for a proposed building are prepared, and these preliminary plans are thereafter abandoned and the building erected pursuant to other plans and specifications, no lien will attach for the preparation of the abandoned plans and specifications.11

§ 83. The Massachusetts Doctrine.-One of the clearest expositions of the doctrine that while the architect may have a lien for labor performed by him in supervising the erection of a building, yet his lien will not extend to labor performed in the preparation of plans and specifications, is to be found in an opinion of Mr. Justice Knowlton of the Massachusetts Supreme Court. The Massachusetts statute under which the case was decided provided that a lien might be had for "labor performed or furnished . . . and actually

11 Buckingham v. Flummerfelt, 15 N. Dak. 112.