34 A.D. 436 | N.Y. App. Div. | 1898
The action was brought to foreclose a mechanic’s lien for a balance due on a contract for making certain repairs and alterations in a building in which the appellant had a life estate.
The appellant’s interest in this property is sought to be charged upon the claim that she consented to the repairs and alterations
Section 1 of. chapter 342 of the Laws of 1885,. the act under which.the plaintiff seeks to establish a lien upon the appellant’s property, provides that “ Any person * -* * who shall hereafter perform any labor or service, or furnish any materials which have been used or which are to be used in erecting, altering or repairing, any house, * * * with the consent of the owner, as hereinafter defined, or his agent, * * * may, upon filing the notice of lien-prescribed in the fourth section of this act, have a lien for the principal and interest of the price and value of such labor and. material upon such house, * * * and upon the lot, premises, parcel or farm of land upon which the same may stand.”
The plaintiff’s, assignor performed certain labor and furnished certain materials in altering and repairing a house upon the premises known as No. 54 West Twenty-third street in the city of New York, under a contract between himself and a corporation in possession of the premises. He had no contract with the appellant, and no express consent is proved. The referee found that such labor and material were furnished with the consent of the appellant, and the appellant challenges that finding as not being sustained by the evidence. By a contract dated January 14, 189.3, between Simpson’s, a corporation, of the first part, and P. J. Brennan, contractor, of the second part, Brennan agreed to erect and finish the building, “so.far as the mason, iron and carpenter work of proposed alterations and additions of two new stories to the building No. 54 West 23d. street, New York city, is concerned, agreeably to the drawings and specifications made by j. B. Franklin, architect,” for the sum of $27,500, which the said corporation agreed to pay. The referee found that .the premises in question were leased by- the appellant to one Joseph H. Simpson by a lease dated July 18,1892. This lease was to begin on the 1st day of May, 1893, and to continue for twelve years. By -the said lease the tenant agreed that lie would, “at his and their own ■ cost and expense, make changes and improvements on the above-
The question as to what acts, of an owner of real estate constitute an implied consent to the furnishing of labor or materials used in the construction of a building upon his property, within the meaning of this statute, has been discussed by the .courts of this State in several late cases. A lien of this character was unknown to the conmon law, and while the statute giving the lien “ must réceive a liberal construction to secure the beneficial purposes which the Legislature had in view, it cannot be extended to a state of facts not fairly within its general scope and purview. * * * The statutory incumbrance is 'imposed upon real estate in such cases only when the work is performed or materials-furnished in pursuance of some contract with the owner, who is sought to be charged, or whose interest is to be affected, or when his consent is in some way established.” (Spruck v. McRoberts, 139 N. Y. 197.) In that case it was held ■that the fact that the owner of the land knew what was being done by the plaintiff, and failed to forbid or prevent him, could not be construed to be a consent within the meaning of this- statute. The court said: “ In the absence of proof connecting the defendant with the contract, or showing that he consented to the work,.neither he nor his title is bound by what was done. When a contractor,
In Havens v. The West Side Electric Light & Power Co. (49 N. Y. St. Repr. 771; affirmed by the Court of Appeals, without opinion, in 143 N. Y. 632), which affirmed a judgment of the Special Term for the reasons assigned at Special Term (44 N. Y. St. Repr. 589), it was held that a consent implies not merely that a person accedes to, but that he authorizes, an act; and that where the landlord of premises has leased his land to. a tenant, and such tenant enters into a •contract to erect a building on the premises, and where the lease ■contains no permission or provision giving the right to the tenant to ■erect or construct any building or appliance on thé laud, the landlord, not being in possession of the premises,-could neither consent not dissent to the erection of such building, the work having been done ;and the materials furnished, not with, but without, the consent of the owner, the court saying: “ The most that can be said is, that Mr. Striker acquiesced, and acquiescence is not consent. We give ■consent when we yield what we have the light or the power to with
These cases seem to establish ■ that a consent cannot be implied upon the sole ground that the landlord gave a consent'in a lease to the tenant to make certain alterations, without including in it a limitation to the effect that he was not allowed to make any alterations in addition to those expressly authorized; and that the fact, that the. owner of the land knew what was being done by the person erecting a building, or making alterations upon a building, upon his land, and failed to forbid and prevent him, could not be construed to be a consent within the meaning of this statute.
By the lease in this case the lessee agreed to make certain alterations and improvements in the premises, which were specified.. This work was to be done at. the' expense of the tenant, and was to be without any cost or charge to- the landlord. The tenant further covenanted that after such changes and improvements had been made, no change would be made in the premises without the consent of the appellant (the landlord). It seems to us quite clear that the consent contained in this lease could not be said to be .a consent that the work actually done should be performed, or that the materials actually furnished should be furnished. Under it the appellant was careful to limit the tenant as to the alterations that he was allowed to make, and the tenant was required to covenant .to make no other changes in the building, without the written consent of the appellant. The evidence shows that the improvements contemplated by the parties when- the lease was made, and which were consented to- by the appellant, would cost about $10,000, and the "utmost that could be said, is, that the appellant consented that the
■ The appellant is sought to be held responsible for the communications made to her husband and the knowledge that had been acquired by him. The case is barren, however, of any testimony which would justify a finding that the appellant ever created her husband her agent to consent to these alterations in the building, or that knowledge communicated to him, or statements made by him, bound the appellant. It is not claimed that he had anj express authority from the appellant to bind her by any consent to the erection of a building upon the premises. She had executed the lease herself. The covenant in the lease against any additional change or alteration in the building required that her own consent in writing, should be obtained ; and the fact that her husband had been allowed to collect rents for her, or did as a fact collect them, or had employed an attorney .to act for her, would not justify a finding that he was authorized to consent to additional alterations or changes in the building, or to the.making of a contract which would charge her interest in the premises with a liability for such a large sum of money. Her whole conduct shows that she retained control of the property and the power to say what disposition should be made of it. It could hardly be claimed that if the appellant’s husband had attempted, as the agent of his wife, to convey or lease the property, the evidence before the referee would justify a finding that he was' authorized to make such a conveyance or lease. The evidence does not show that any consent to these improvements was asked of the appellant or of her husband, or that they were consulted before the contract was actually executed, as to whether or not the improvements should be made.- Certainly no such information -was given to the appellant, nor was her consent asked to the contract as ' actually made or to the changes and alterations which were eventually determined upon.
Mrs. Gould was called as a witness. She swore that when she
In this condition of the evidence it seems impossible to sustain the finding of the referee that the work was done and the materials furnished for the completion of this building with'the consent of the appellant. The testimony as to the two or three conversations with' her is so indefinite as to time and substance that, in the face of her positive denial of such conversations or of any knowledge of the alterations which were to be made in the building;,it is not sufficient to prove a consent on her part which would subject her property to an incumbrance. In the lease, as before stated, she with great care restricted the tenant as to the improvements that he should make, and required that her consent in writing be obtained for any additional alterations or changes in the building. Such consent was never asked. All the statements made to her by the two witnesses who testified to conversations with her, were incidental talks upon the premises or upon the street without apparent' object and without any request of approval from her as.to- what was contemplated. It is not shown that she interfered in the slightest with what this corporation and its contractors proposed-to do, or that she understood that what they contemplated was anything more than that provided for in the lease to which she had consented. It is not alleged that her attention was called to the fact that, these proposed improvements were to be in addition to those called for by the lease, or that she was asked to consent to any modification of the provisions. of the lease. Two or three casual conversations in relation
As before stated, we do not think the evidence shows that Mr. Gould was authorized by the appellant to consent to the modification of the lease or to the making of this contract; but even if he was, there is no evidence to show that such a consent was given. It is true that he was informed that extensive alterations were contemplated, and of the extent of the addition to the building upon the premises; but it is nowhere alleged that he expressly approved or, assuming to act for his wife, gave any consent to the alterations or to the making of the contract. No such consent was asked of him, nor does it. appear that either the plaintiff’s assignor, the corporation or the tenant desired such consent or considered.that it would be of any advantage to them. The knowledge that he acquired of what was going on was not communicated to him as the agent of his wife or when he was acting for her; and I do not think that such knowledge so acquired can be imputed to the appellant so as to imply from it a consent on her part that this corporation should make a contract to expend $45,000 upon this building. The evidence that the. appellant went to Europe for two or three months, giving her husband a written powbr of attorney to act for her in her absence, would tend to show that he had not authority to act for her while she was here. On the whole casé, we think the evidence fails to show that these materials were furnished or the labor performed upon these buildings with the consent of the appellant.
The appellant also objects to the notice of lien upon the ground that she is not named therein either as owner or lessee, or a person against whom the lien is claimed, or otherwise. The notice of lien states that all of said, work was done and materials were furnished
It follows that the judgment appealed from should be reversed and a new trial ordered, with costs to the appellant to abide the event. .
. Yan' Brunt, P. J., Patterson, O’Brien and McLaughlin, JJ., concurred.
Judgment reversed, new trial ordered, costs to appellant to abide event.