Keck v. Charles B. Saxon, Inc. , 297 N.Y.S. 7 ( 1937 )

Callahan, J.

Action to foreclose a mechanic’s lien. The plaintiff, a sculptor, designed and made a plaster model for a group furnished to the defendant to be used in guiding stonecutters employed in constructing a pediment over the entrance of a building being erected by defendant Charles B. Saxon, Inc., as general contractor.

Defendant contends that the plaintiff has no lien for the reason that the work furnished was not an improvement within section 3 of the Lien Law. That section provides that a “ contractor, sub-contractor, laborer or materialman, who performs labor or furnishes materials for the improvement of real property * * * shall have a lien.” Section 2 of the same statute defines improvement to include the “ erection, alteration or repair of any * * * real property and any work done upon such property or materials furnished for its permanent improvement.”

Defendant contends that the model group made by the sculptor does not come within the improvements thus defined.

While it is true that the plaster model did not of itself become a part of the structure, a replica thereof was cut into the stone and it seems to me that when this was done the group and the labor or artistry which it represents became a part of the improvement and came within the meaning of the statute. The Lien Law should receive a liberal construction. (Shultz v. Quereau Co., 210 N. Y. 257.)

This case is to be distinguished from those where tools and appliances are used on construction work. Such articles do not go into the improvement of the real property. They are merely part of the contractor’s plant used in doing the work.

Judgment for plaintiff fixing his lien at the sum of $450, with interest and costs. Submit findings.