proof is upon the plaintiff to establish these facts by a preponderance of evidence in his favor and to establish in the same way, and as part of his case, the fact that the certificate was unreasonably withheld.2 23 It should be noted, also, that in New York it has been held, where the production of the architect's certificate is made a condition precedent to the right of payment, not only that there can be no recovery unless the certificate be produced, or a good and sufficient excuse shown for its non-production, but, in addition, that no payment can be enforced under these circumstances unless there be an allegation in the complaint that the certificate has been secured, or facts set forth showing that it has been unreasonably withheld, and unless the pleading be sustained by proof upon the trial.24 § 96. Municipal Contract-Approval by City Department as Condition Precedent.-In the case of a municipal contract where it is stipulated that the certificate of approval of a department of the city is a condition precedent to final payment, and the claim is made that the certificate has been unreasonably withheld or refused, whether or not such withholding or refusal has been unreasonable or arbitrary is a question of fact, and should be left to the jury for determination.25 23 Nesbit v. Braker, 104 N. Y. A. D. 393. 24 Weeks v. O'Brien, 141 N. Y. 199; L'Hommedieu v. Winthrop, 59 A. D. (N. Y.) 192. 25 N. Y. & N. H. Automatic Sprinkler Co. v. Andrews, 173 N. Y. 25. § 97. Collusion-Effect.-Where the withholding of the certificate is the result of collusion between the architect and the owner the lien will be enforced.20 § 98. Waiver of Condition by Owner.-Inasmuch as the production of the certificate is a condition specified for the protection of the owner, the latter may waive the condition if he choose to do so.27 § 99. Certificate as Evidence of Performance. -The certificate of the architect will support the lien claim where the contract specifies that the certificate shall be conclusive evidence of performance, but this rule is subject to the qualification that it is operative only in cases where the certificate is not only produced but is unimpeached. If it be provided, for instance, that the work to be done and materials to be furnished shall be of a certain character and quality, and subject to acceptance or rejection by the architect, his acceptance will not in itself be sufficient to support the lien claim, where it is shown that the work and materials are not of such character and quality as to comply substantially with the provisions of the contract. § 100. Corporations as Lienors.-The mere fact that the contractor claiming the lien is a corporation, will ordinarily under the lien statutes make no difference, for the word "person" com 26 McDonald v. Patterson & Co., 186 Ill. 381, affirming 84 Ill. Apps. 326. 27 Hartley v. Murtha, 5 N. Y. A. D. 408. monly and widely used in the statutes in describing those who are entitled to liens, has been construed by the courts, in the absence of other restrictive language, to include a corporation.28 The New York courts have held further that where a foreign corporation delivers material which is used in work in New York a lien may be maintained by the corporation notwithstanding its foreign origin. 29 § 101. Effect of Fire.-In the event of the destruction of a building by fire where it has been provided that payment shall be made upon completion and where the contract is not separable, but refers to the work as a whole, a lien may be maintained, provided the contract contain a provision that the risk of the destruction of the building by fire is upon the owner.30 In the absence of such a provision however, the lien will not be enforcible. 31 § 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 effect the lien already attached. 32 28 Gaskell v. Beard, 58 Hun. (N. Y.) 101; Loudon v. ColeMan, 59 Ga. 653. 29 N. Y., etc., Terra Cotta Co. v. Williams, 102 N. Y. A. D. I; and to same effect see Cook v. Rome Brick Co., 98 Ala. 409; Fagan v. Boyle, etc., Co., 65 Texas 324; Huttig Bros., etc., Co. v. Denny Hotel Co., 6 Wash. 122. 30 Sontag v. Brennan, 75 Ill. 279. 31 Wigton's Appeal, 28 Pa. St. 161. 132 Pennock § 103. Death of Owner.-In the event of the death of the owner, the death operates, in some jurisdictions, to defeat the lien right, while in others the lien may still be enforced.34 33 § 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.35 In Ohio, even where the assignment has preceded the filing of the lien, the continuing validity of the latter has been recognized.36 § 105. Consent of the Owner.-The facts already noted under another heading 37 in regard to the necessity and effect of the owner's consent are applicable also to the lien of the contractor or subcontractor, or other similar lienors. 33 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. 34 Robins v. Bunn, 34 N. J. L. 322; Holbrook v. Ives, 44 Ohio St. 516; Richardson v. 35 Steger v. Arctic Refrigerating Co., 89 Tenn. 453. 36 Hart v. Globe Iron Works, 37 Ohio St. 75-compare, Noyes v. Burton, 29 Barb. N. Y. 631. 37 See § 88, p. 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 and material-man as well as the contractor, and in many cases the subcontractors and material-men have been given a direct or subordinate lien by statute.1 § 107. The Pennsylvania Doctrine.-The Pennsylvania courts especially have led in the see Co. V. 1 As to subcontractors New v. Carroll, 73 Hun. 564; Pendleburg v. Meade, 1 E. D. Smith N. Y. 728; Perry v. Potashinski, 169 Mass. 351; Savoie Construction Ziman (Mass.), 125 N. E. 167; Mon. Merrigan v. English, 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 198 subcontractor for labor is in- see V. |