Samuel DeFrancisco, Appellant, v. Mary Perry and United Lumber and Supply Corporation, Respondents, Impleaded with Others, Defendants; Thomas Mallare, Respondent, v. Mary Perry and Sam Perry, Defendants, and Samuel DeFrancisco, Appellant

Samuel DeFrancisco, Appellant, v. Mary Perry and United Lumber and Supply Corporation, Respondents, Impleaded with Others, Defendants. Thomas Mallare, Respondent, v. Mary Perry and Sam Perry, Defendants, and Samuel DeFrancisco, Appellant. [MAJORITY] Judgment so far as appealed from reversed on the law and judgment otherwise modified on the law by providing that the liens of the respondents Mallare and the United Lumber and Supply Corporation are inferior to the lien mortgage of the plaintiff DeFrancisco and as so modified affirmed, with costs to the plaintiff DeFrancisco. Memorandum: The record is lacking in evidence that the plaintiff, either personally or through an agent, agreed to pay the defendant Mallare for his work on the mortgaged premises. Anthony DeFrancisco is not shown to have been plaintiff’s agent and the record contains no evidence of conduct on the plaintiff’s part on which an estoppel to claim the priority of his mortgage lien can be predicated. All concur. (The portion of the judgment appealed from is for the defendant corporation in one action and for the plaintiff in the other action, in consolidated actions to foreclose a mortgage.) Present — Sears, P. J., Grosby, Lewis, Taylor and Dowling, JJ.