¶1It has been held by this court in Hart v. Wheeler, 1 N. Y. Sup. 403, that when an owner of land agrees to sell to another and advances him money with which to build upon the premises sold, and after completion of the houses the builder is to secure the purchase price and the advances by mortgage, that the relation of owner and contractor does not subsist as between the parties, under the lien act. Laws 1862, chap. 478. In such cases the person who agrees to purchase builds by permission of the owner, and the property is chargeable with the lien until the deed is actually delivered, without regard to'the terms of the contract of purchase.
¶2The question presented on this appeal is res adjudícala and the judgment should be reversed and a new trial granted at special term, costs to abide event.
¶3, Judgment reversed and new trial granted.