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used in the erection" of the building, and Judge Knowlton said:

"The questions presented by this case are, first, whether an architect, who has drawn plans and prepared specifications for the construction of five houses under a contract to draw the plans and specifications and supervise the construction of the houses, and who has supervised the construction of one of the houses until it was about half completed, and supervised the work of putting in the foundations of two of the others, involving an expenditure of about forty dollars upon one and about fifteen dollars upon the other, can have a lien under the Pub. Sts. c. 191, for the whole amount due him; and secondly, if he can not, whether he can have a lien for the value of his services in supervising the work upon the buildings, considered apart from the preparation of the plans and specifications.

"The Statutes of the different States in regard to mechanics' liens differ materially in their provisions, and the cases show a considerable conflict of authority upon the questions before us. But we are of opinion that, under statutes similar to ours, the weight of judicial opinion is in favor of holding that the services of an architect in preparing plans and specifications for a building are not the kind of labor intended to be protected by the statute, and, on the other hand, that services upon a building in supervising the work of construction enters directly into the construction so as fairly to be called 'labor performed or furnished . . . and actually used in the erection' of a building, within the meaning of these words in § 1 of the Statute above cited. It is also generally held that the fact that one who does such work is an architect does not prevent him from recovering for this kind of service, which is often performed by an intelligent mechanic. This is the doctrine of the highest court in Pennsylvania, where the provisions of the statute are simi

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lar to ours. (Price v. Kirk, 90 Penn. St. 47; Rush v. Able, 90 Penn. St. 153; Bank of Pennsylvania v. Gries, 35 Penn. St. 423.) Under a like statute in Missouri, it was held in Raeder v. Bensberg, 6 Mo. App. 445, that the services of an architect 'in drawing plans and specifications and giving directions to the builder under whose special superintendence the house is being erected, can not be called, in any proper sense of the words, "work or labor upon the building." A similar decision was made 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 has been further held in that State that, where the contract is entire and not separable, and the amount due to the architect for services rendered 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.18

§ 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, especially when he has supervised 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

12 Mitchell v. Packard, 168 Mass. 467.

13 Libbey et al. v. Tidden et al., 192 Mass. 175.

the architect, in a very real sense, enter into and make possible, the improvement of the property.

In the first edition of this work, published just prior to the 1916 Amendment of the New York Lien Law, I said

"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 accordance with the specifications prepared by him.”

The 1916 Amendment brought about this precise result. It is thoroughly sound and logical and will be adopted more and more generally I believe in other jurisdictions.

§ 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,1 but has been allowed for an addition

14 Updike v. Skillman, 27 N. J. L. 131, holding the addition

of an extra story to a building an alteration merely.

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

§ 86. Lien by Contract.-While it is true that the lien is purely a creature of statute and dependent upon the statute the owner may yet create 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 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

15 Updike v. Skillman, 27 N.

J. L. 131, supra.

16 Mosher v. Lewis, 10 N. Y. Misc. 373.

17 Lippincott v. Yorke, 86 Tex. 276; except that in Cali

fornia the lien right is primarily founded upon the Constitution as already noted; see Heberling v. Doy, 209 Pac. 908; Young v. Shriver, 206 Pacific 99.

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