158 N.Y.S. 1070 | N.Y. App. Div. | 1916
Lead Opinion
The National Fair and Exposition Association (called herein the “tenant”) by instrument dated December 28,1912, obtained a tentative option for a lease from the Empire City Racing Association (called herein the “owner”) of the Empire City Park in Yonkers for five years, from January 1,1913, with the further right of a five years’ renewal. The tenant closed this
After taking possession, about April 1, 1913, the tenant planned many extensive alterations by a scheme involving much new building, such as additions to the rear of the grandstand, transforming the old betting shed into a machinery building, with enlargements of the barns so as to house exhibition animals. These proposed improvements were described with much detail in a letter of July 9, 1913, to the owner, wherein the owner’s written consent was asked. At this time some of the proposed work had already started.
The owner answered on same date, reminding the tenant that by the lease such changes were to be at the tenant’s
These consents were specified with much detail. Some of the tenant’s proposed changes were disapproved, and the owner withheld any consents thereto.
There was evidence of a telephone interview as to furnishing a bond by individuals before obtaining the bond of the National Surety Company. On the next day, July tenth, a bond, by Messrs. Stokes and Lea as sureties, was executed, with the condition:
“Whereas, pursuant to the provisions of said lease, the principal has requested the obligee to consent to certain changes and additions to the buildings and grounds of said Empire City Park, and the obligee requires the principal to furnish a guarantee that the expense of such changes and additions will be paid for by the principal and that the obligee will be held harmless therefrom, and which changes and additions and consent are fully set forth in the letter of the principal addressed to the obligee dated July 9th, 1913, and the letter of the obligee to the principal dated the same day, both made part hereof.
“Now therefore, the condition of this obligation is such, that if the said principal shall faithfully perform and pay for the work necessary to make such changes and additions on its part according to the terms and conditions of said letters, then this obligation shall be void, otherwise to remain in full force and effect.”
On July eleventh the owner wrote in acceptance: “We beg to acknowledge receipt of your temporary Bond and to say that with the understanding that you will supplement it by July 22nd, 1913, with one issued by the National Surety Company of New York City for $20,000, the same is acceptable to us.” The expected bond by the National Surety Company was never provided.
The main question on this appeal is whether, in view of the
We, therefore, agree with the finding that the owner consented to these liens.
Appellant, Empire City Racing Association, objects to the sufficiency of the complaint foreclosing the lien of Church E. Gates & Company, Inc., because it did not comply with section 1629 of the Code of Civil Procedure. Originally it averred “that no other action or proceeding at law or in equity has been brought to foreclose the said plaintiff’s said lien or claim.” At the opening of the trial, however, the court permitted an amendment to add the words: “ Or to recover the amount due to the plaintiff.” _ This amendment complied with the Code requirement (Bachmann v. Spinghel, 164 App. Div. 725), and, having been granted without objection, leaves nothing to review.
We pass to consider the appellants’ objections to the different liens.
As to the notices of lien. Appellants attack the liens of William J. Sullivan, Lawrence Brothers, Inc., Gates & Company, Inc., and the Wright-Ogden Company, Inc., because the notices did not name the Empire City Racing Association as owner. In most cases the notices gave the name of the Empire City Trotting Club, which was this organization’s former corporate title, before it was changed on January 18, 1908.
Considering that the Empire City Trotting Club was the former name of this appellant, still retained in the record title of part of these lands, we think this misnomer did not mislead the appellants or any one interested. The Lien Law (Consol. Laws, chap. 33 [Laws of 1909, chap. 38], art. 2, § 9, subd. 7) declares that such a misdescription shall not affect the validity of the lien. Here the true owner was named, under its former corporate title. The indexing of the lien was such as readily to discover and make certain its existence. Hence there was a substantial compliance with the statute. (Ray Mechanics’ Liens, § 163.)
The Yonkers Lumber Company and the Lawrence Brothers, Inc., both name in their notices of lien, as owner, James
Not stating the consent or request of the owner. This point is made against the liens of the Mt. Vernon Builders’ Supply Company, Jacob Nor den and Kapp & Nordholm Company. But the consenting or requesting person need not be specified in such notice. It is enough to name the owner.
Signing and verification of the notices of lien. The verification in cases of workmen was by the attorney in the set form of such a verification of a pleading. To reject it would practically deny the right of an agent to verify in part on information and belief. The affiant avers that “the statements * * * are true to his own knowledge, except as to the matters therein stated to be alleged upon information and belief,” which should suffice. (McDonald v. Mayor, etc., 170 N. Y. 409.)
As to alleged dissent of the owner. The lien of William J. Sullivan ($1,211.46) for gravel, crushed stone and sand, also for cleaning, carting and hauling material for driveways and track, is claimed by appellant to have been incurred against the owner’s express dissent. With reference to the roadways, the owner wrote, “ we shall require full details before giving our sanction to the same.”
The proofs do not bear out the contention that there was no consent. These expenses' not being disapproved, and having-been expressly brought to the owner’s attention, must now be regarded as having come within the terms of the subsequent bond, and, therefore, included in the resulting consent and so ratified by the owner.
As to the notices not discriminating between labor and materials. The lien of Sullivan, thus objected to, reads: “ The labor performed was carting, hauling, sprinkling, watering and repairing and cleaning up generally the driveways and track
The wages liens. The decision includes 79 labor liens, which were allowed. The men were carpenters and other manual workers, of whom 34 were paid by checks (afterwards dishonored) of the National Fair and Exposition Association. All but seven got back these checks and tendered them at the trial. A claim in bankruptcy proceedings had been filed on behalf of all the wages claims.
The mechanics’ lien suit at bar was begun October 22, 1913. These labor lienors were allowed to intervene by order of February 6,1914. The grounds already considered show a consent to these labor liens. Appellant, howeve r, first urges that the labor liens of David Linton, one hundred and five dollars and eighteen cents, Edward Delapp for seventy-three dollars and sixty-eight cents, and Pierce A. Wall, sixty-one dollars and thirty-one cents, were not legally proven, because the lienors did not personally testify before the commissioner, but instead presented affidavits. It appeared that Justice Keogh suggested this in open court as to Delapp and Wall, and their affidavits were thereafter received without objection. The lien of David Linton was established by his brother’s testimony, which proved the services and the working time of both Lintons.
As to the effect of proving claims in bankruptcy proceedings and the resulting composition proceedings. The National Fair and Exposition Association was adjudged bankrupt in the United States District Court on August 29,1913. Many of the above lienors filed their claims in bankruptcy there and others filed such claims with the referee. Mr. Gue was'appointed trustee September 30, 1913. On April 16, 1914, the referee issued his certificate in composition, which composition was confirmed
The liens here adjudged are not against the bankrupt’s property, but are enforced against that of the owner and lessor. The action of the lienors in voting in bankruptcy creditors’ meetings should not be held to waive their claim against the owner. Matter of Thompson (31 Am. Bank. Rep. 236) holds that “ security ” under the Bankruptcy Act is limited to security out of or against the bankrupt’s estate, and not as respects a collateral claim against other parties. (Matter of Matthews, 132 Fed. Rep. 274.)
The respondents Norden, Mount Vernon Builders’ Supply Company and the Kapp & Nordholm Company withdrew from the bankruptcy proceedings after the first meeting of creditors. It has been stipulated that Gates & Company, Wright-Ogden Company, William J. Sullivan, Jandous Electric Equipment Company, Colwell Lead Company and Percy Bloom filed no claims in bankruptcy against this lessee, and never participated in the proceedings in bankruptcy.
Aside from the fact of filing these claims of laborers and their failure to dissent, there does not seem to be proof of the acceptance of this composition by these lienors.
The decree by the Special Term distinguished the lien claims of the Jandous Electric Equipment Company (not allowed against the lessor), but allowed only against the interest of the lessee, the National Fair and Exposition Association, and the trustee in bankruptcy. This lien was filed on September 8, 1913, after the adjudication in bankruptcy. It is objected that such notice of lien so filed after the bankruptcy was ineffective. The trustee in bankruptcy took title subject to all such hens, and to proceedings pending to enforce them. (Schoenherr v. Van Meter, 215 N. Y. 548; Metcalf v. Barker, 187 U. S. 165.)
It does not appear that the “ preferred eight per cent ” composition “stock” was ever issued to or accepted by the labor
A point is raised as to the outstanding checks given to some of these work people. Naturally they cashed them, doubtless being already in debt for their family supplies. About thirty-four such instances appear where the laborers got part cash on these worthless checks, which advances, at the time of the hearing, had not all been refunded. The checks having, come back again into the hands of the men, were tendered at the hearing in all but seven instances. As to these seven claims by laborers, the appellants, if they so require, will be entitled to have appended at the foot of the decree a provision for the production and deposit of such pay checks which are outstanding, and were not tendered at the trial.
The conclusion follows that the judgment should be affirmed, with a bill of costs to each of the seven attorneys who have appeared for respondents on this appeal, such costs to be taxed one-half against each appellant.
Thomas, Carr and Stapleton, JJ., concurred; Rich, J., read for reversal.
Dissenting Opinion
I dissent. The tenant, on July 9, 1913, wrote the owner, stating in detail the improvements it desired to make, and asking the owner’s consent. To this letter the owner replied on the same day: “ In reply to your communication of even date giving details of changes and additions you desire to make to the buildings and grounds at Empire City Park and requesting our consent thereto, we beg to say that under the provisions of the lease between us for the use of said Park, dated December 28th, 1912, all such changes and additions are to be made and erected at your expense, and the undersigned is to be held harmless therefrom. Subject to your furnishing us with a satisfactory guarantee of your ability to pay for such changes and additions, and provided the work is completed before August 31st, 1913, we will accord you the following consents under the terms of said lease, to take effect when such guarantee is furnished.” Then follows a detailed statement of the
Prior to the time when these letters were written the tenant had entered into some contracts for materials and had employed some men who had begun to work on the proposed improvements. Upon receipt of the reply to the letter of July ninth a conversation regarding the guaranty was had between tenant’s president and the secretary of the owner, Mr. MacKain, which the latter has detailed as follows: “Mr. Stokes and Mr. Lea called up and asked what kind of a bond we wished and we told them some guarantee company, and they asked which one and I said the National Surety Company would be satisfactory. And Mr. Stokes and Mr. Lea said it would be impossible for them to give it that day, and I asked them how soon they could give one and Mr. Stokes said that he was going back to the National Surety Company in a day or two and he would get it down there, and everybody knew his position there and he could get one very readily there. They asked if [we] would accept a personal bond. Mr. Stokes said that he owned some property valued at $100,000 in Nashville, Term., and was assessed for $50,000, Or $60,000 free and clear and Mr. Lea owned some property in Mississippi and we could take their bond temporarily until he could get a National Surety bond. ”
On July 10,1913, a bond executed by the tenant as principal and Stokes and Lea as sureties was mailed to the Empire City Racing Association, the receipt of which was acknowledged by the latter on July eleventh, as follows: “We beg to acknowledge receipt of your temporary Bond and to say that with the understanding that you will supplement it by July 22nd, 1913, with one issued by the National Surety Company of New York City for $20,000, the same is acceptable to us.” No surety company bond was given, and on August 29, 1913, the day the tenant was adjudged a bankrupt, the parties who later- filed the liens involved in this action had furnished materials and labor in making the improvements under contracts with the tenant. No one of the contractors had seen the lease, or made any effort or inquiry to ascertain the conditions under which the lessee had possession, or whether such lessee had any
Appellants contend, among1 other things, that all of the liens are invalid because the owner of the property against which they are filed did not request or consent to the making of the improvements upon which the liens are based, and consequently no valid liens could be acquired upon its property under the provisions of section 3 of article 2 of the Lien Law (Consol. Laws, chap. 33; Laws of 1909, chap. 38). Under the provisions of the Lien Law, which provides that “A contractor, sub-contractor, laborer or material man, who performs labor or furnishes materials for the improvement of real property with the consent or at the request of the owner thereof, * * * shall have a lien for the principal and interest of the value, or the agreed price, of such labor or materials upon the real property improved or to be improved and upon such improvement, from the time of filing a notice of such lien as prescribed in this article,” before the plaintiff could have a judgment enforcing its lien by the sale of the property of the Empire City Racing Association, it was necessary to establish a request or consent of such association for the making of the improvements and alterations to its property. This is conceded, but the plaintiff contends that it established this fact by the lease itself, the terms of which, it is argued, not only provide for alterations and improvements, but require that they be made to the extent of $20,000 within two years, and $50,000 within four years after its execution; and it is argued that this condition brings the case within the principle that, where a lease requires the tenant to make improvements or repairs, the requirement itself justifies the inference of the consent of the landlord owner sufficiently to sustain a lien. While it may be
The plaintiff and the respondents relied solely upon the responsibility of the lessee in extending the credit, except that the plaintiff, with knowledge of . the lease, preferred to “ gamble ” upon results rather than ascertain whether the consent had been given.
Under the circumstances, I think the lienors must be held to have taken all the risk involved in extending credit to the lessee and to be limited in their recovery to their debtor and its property. As was well said in a similar case (Hartley v. Murtha, 36 App. Div. 196): “The requirement that the plans and specifications should be submitted before any consent on the part of the landlord should become operative was not technical but was substantial in its nature, and an important protection to her rights and interests. As it was utterly disregarded, it is plain that the work proceeded without her consent, and that her property is in no way liable for the lien which the plaintiff has attempted to impose upon it. The plaintiff cannot complain of this result.”
I must vote to reverse the judgment, with costs to each of the appellants, and I think that the complaint ought to be dismissed upon the merits as to the defendant Empire City Eacing Association, and dismissed as to the other defendants, without prejudice to the bringing of an action against its debtor, the .National Fair and Exposition Association, if the plaintiff shall be so advised.
Judgment affirmed, with a bill of costs to each of the seven attorneys who have appeared for respondents on this appeal, such costs to be taxed one-half against each appellant.