101 N.Y.S. 502 | N.Y. App. Div. | 1906
The contract was made September 27, 1902. By its terms the plaintiffs as parties of the first part thereto in consideration of one dollar, the receipt whereof was acknowledged, agreed to sell to the
October 2, 1902, the parties in writing modified said -contract so as to extend the time of payment of the $999 and the delivery of the said bond thirty days from October 27, 1902-, and the time of the completion of the hotel to April 27, 1904. The deed was not- - to be delivered until the purchase price was paid and the bond given. ,'•■■■ -
The appellant under a. contract with the vendees furnished labor and material -in constructing the foundation of • said hotel at an expense of $1,250, which constitutes his lien herein, . The work was begun ¡November 8,. 1902. Plaintiffs were aware that this work was being done. About a month after the contract was executed there was a ceremony of laying a'corner stone which was participated in by one of the plaintiffs. Thereafter the vendees defaulted in-payment of the purchase price and -the bond for the erection of the . hotel was not given and work on the hotel was suspended. ¡By reason of the .non-pérformance of the contract by the vendees-.the plaintiffs derived no benefit from the expenditure of the appellant.
In Jones v. Menke (168 N. Y. 61) a lease .provided that the prem
That case is a controlling authority here. There the lessee was required by the terms of the lease to fit' up and complete the property for a specified purpose. Here the vendees were required by the terms of the contract to construct and equip a hotel of a specified capacity and at a specified expense. It is manifest that the plaintiffs expected to derive a substantial benefit from the construction of this hotel. Hot only was the hotel a part'of the consideration of the proposed sale, but the vendees agreed to give ample security to the vendors in the sum of $10,000 for the erection of said hotel. This expected benefit to the plaintiffs was $5,000 additional for the purchase price of the property pledged by popular subscription provided the hotel should be built. It is difficult to imagine a contract where by the terms thereof the improvement is more clearly required. It was not optional but obligatory with the vendees to construct this hotel. Improvements made under such a contract are deemed to be with the owner’s consent within the meaning of the Lien Law. The fact that the improvements did not benefit the
This case is to be distinguished from those where the vendee or lessee is permitted by the terms of the contract to make improvements or changes in the property solely for his own benefit or convenience. This distinction is pointed out in Rice v. Culver (172 N. Y. 65), as follows : “ There is a marked distinction between the passive acquiescence of an owner in that he knows the improvements are being made, improvements which in many cases he has no right to prevent, and his actual and express consent or requirement, that the improvement shall be made. It is the latter that constitutes the consent mentioned in the statute.”
It is said that the parties did- not contemplate the construction of the hotel until after the payment of the purchase price and delivery of the, deed and bond. Of course it is plain that the hotel could not be completed and fully equipped until afteT that time. It is just -as plain that the parties intended that work on the hotel should begin immediately. For no other purpose did the contract provide, that the vendees should have immediate possession. The work was being performed before the time fixed in the contract for the payment of the purchase price and the delivery of the deed and bond. Of this the plaintiffs were cognizant. They made no protest or .objection, but permitted the appellant to continue the prosecution of the work whereby they expected to be benefited. Such work was performed in furtherance of their contract with the vendees. Had the project proved successful the plaintiffs would have received their expected benefits therefrom. The project having proved unsuccessful, it is equitable that they should be subjected, to the corresponding burdens.
The judgment- must be reversed on the law and facts and a new trial granted, with costs to the appellant to abide the, event.
All concurred, except Chester, J., dissenting; Kellogg, J., not sitting.
Judgment reversed on law and facts and new trial granted, with costs to appellant to abide event.
Sic.