62 N.Y.S. 35 | N.Y. App. Div. | 1900
' This action is to foreclose a mechanic’s lien. The appellant Murray was the owner of a large tract of land in the city of Brooklyn,, known as Ambrose Park. In 1893 the appellant entered into an agreement with the defendant, the Wild West Company, by which the latter- was given license to occupy- the park for the purpose of giving exhibitions for a stipulated portion of the receipts, and was to have the right to remove all buildings and structures it might.
Morgan entered into possession of the park, proceeded to construct thereon a bicycle track, and also to repair and improve the buildings already on the lands. He became involved in financial difficulties, and liens were filed upon the property by the plaintiff and certain of the defendants, either materialmen or contractors. It is stipulated in the case that one- Ambrose was the general agent of the appellant Murray for the management of the property. It appears by the evidence that Ambrose gave not only assent but directions to have certain repairs made to the buildings, fences and other structures on the property. Some of the liens filed include work and labor furnished not only for the bicycle track but also for the repairs to the other structures. The learned trial court held the land of the appellant Murray subject to the full amount of these liens, as to the bicycle track, on the ground that the lease expressly provided for its construction, and as to the repairs to the other structures, because defendant’s agent Ambrose
Were this the ordinary case of constructions erected on land without any agreement for their removal, it is reasonably clear that the provisions of the lease and the action of the owner’s agent would be sufficient to charge the land. (Pell v. Baur, 133 N. Y. 377; Cowen v. Paddock, 137 id. 188.) The main contention of the appellant is ■ based on the claim that the buildings and track, toward the construction or repair of which the work and labor represented by the liens were applied, were by the agreement between the parties personal property or mere chattels. We concede that for no work furnished on a mere chattel, strictly such, can any lien be acquired against the land upon which it is situated. But buildings or other similar structures placed by one party on the land of another, which the former has the right to remove, do not present the case of chattels pure and simple. In Mott v. Palmer (1 N. Y. 564) a tenant had built a fence, under an agreement with his landlord, by which the former had the right to remove the material; the landlord subsequently conveyed the premises, with covenant of seizin; the tenant at the expiration of his term removed the fence; the purchaser sued the landlord for breach of his covenant, and a recovery was upheld. It was said by the Court of Appeals: “The.word land, when used in a deed, includes not only the naked earth, but everything within it, and the buildings, trees, fixtures and fences upon it.- * * * But the fence was within the description of the thing granted as clearly as. the land itself; and being within the description, it was a part of that which- the deed purported to convey, and of which the grantor covenanted that he was the owner.”
In Ombony v. Jones (19 N. Y. 234) a tenant erected a ballroom on the demised premises, for work on which a lien w.as filed. Suit was brought on the lien, judgment rendered, execution issued, and the building sold. It was there held that the tenant had the right of removal during his term, and that the purchaser succeeded to that right, which the tenant co.uld not defeat by a fraudulent sur-
It will be seen, therefore, that the right given tenants to remove buildings does not make such buildings mere chattels. Had the appellant conveyed the land when the buildings were standing upon it, the outstanding right in the Wild West Company to remove those buildings would have been a breach of the covenants given on such conveyance ; and had he owned both buildings and land he could not have reserved the buildings by parol. (Noble v. Bosworth, 19 Pick. 814.) We are of opinion, therefore, that under the Mechanics’ Lien Law buildings must be considered as real estate, regardless of any agreement with the owner of the land as to the right of removal; and that one who furnishes labor or material for their construction or repair may acquire a lien for his claim upon the land itself, under the same circumstances which would subject the land to that lien, provided no agreement for the removal of the buildings existed.
We now reach the question as to the respective liabilities of
All concurred.
Judgment reversed so far as it directs that the sale shall be subject. to the right of the Wild West Company to remove the buildings, and modified so as to reserve the right to the Wild West Company, or the appellant, to apply to the court at Special Term to hear and ■determine the amount of their respective liabilities. As thus modified, the remainder of the' judgment is affirmed, with costs to the plaintiff and to the Yellow Pine Company, respondents, and to the appellant, as against the respondent the Wild West Company.
This opinion was written by Mr. Justice Culle-n before his designation as an. associate judge of the Court of Appeals,, and is adopted by this court. The-decision-of the court was rendered after such designation was made.