46 Misc. 246 | N.Y. App. Term. | 1905
According to his complaint and his evidence the plaintiff, a master painter, did some work and furnished some materials in four apartments at 471 Central Park West, under an employment from one Tribelhorn, the lessee of the apartment-houses 471, 472 and 473 on that avenue. The work was done before the leases were signed by the tenants whom he had orders to satisfy; indeed they would not sign until the washing, patching and tinting were done; when the bill was presented the lessee paid a part,
“ It is here urged that those facts when taken together are sufficient to establish at least an implied consent on the part •of the defendant Warner.” Happily, however, it is well settled that mere acquiescence with knowledge is not sufficient ■evidence of the consent which the statute requires, the consent which is not a vacant or neutral attitude, but is affirmative in its nature. De Klyn v. Gould, 165 N. Y. 282. This is indicated in the case upon which the appellant relies (Nat. Wall Paper Co. v. Sire, 163 N. Y. 122), wherein knowledge was shown, not as here by a scintilla of inference, but by proof that the owner was present during the entire progress of the work, was familiar with its every detail, of which he repeatedly expressed his admiration and the lasting benefit of which he was soon to enjoy. The plaintiff helplessly failed to make out his cause of action and the judgment should be affirmed.
Scott and Davis, JJ., concur.
Judgment affirmed, with costs.