160 N.Y.S. 138 | N.Y. App. Div. | 1916
This is an action to foreclose a mechanic’s lien. In June, 1914, the defendant corporation entered into a fifteen years’ lease" with the defendant Stichman of a store and basement owned by it in the city of Glens Falls, N. T. By the terms of the lease the premises were to be used by the lessee for the purpose of conducting a general moving picture or mercantile business, and not otherwise. The lease provided for somewhat extensive repairs and alterations of the premises, to be made by the owner, but the only provision regarding installing an electric lighting system was that which stated that the owner should rewire the ceiling of the store for electric lights. The lessee was not required by the terms of the lease to make any changes or repairs whatever to the premises. However, the lease provided that all such changes and repairs as might be required tobe made, other than those specified in the lease to be made by the owner, should be made by the lessee, and that all moving picture apparatus installed in the building should be approved by the board of insurance Underwriters, so as not to unnecessarily increase the rate of insurance upon the building. The lease gave the lessee the privilege of making .any necessary alterations or repairs during the term of the lease which should not injure or materially change the building or premises leased.
The lessee elected to occupy the premises with a moving picture theatre. Thereafter, the president of the defendant owner, two of the plaintiffs, and the lessee, met at the building to consider the installation of the necessary electric lighting system. It was then stated by the owner and the lessee, and fully understood by the plaintiffs, that the only expense to be borne by the owner was in connection with the lighting of the ceiling and side walls, and that the expense of installing the balance of the electric system was to be borne by the lessee. The amount to be paid by the owner for its portion of the work was figured out by the plaintiffs, and agreed upon between them and the owner as $109. The president of the owning corporation testified that at this time he said to the plaintiffs: “ This is what we pay for and we have nothing more to do. We will do nothing more, and pay for nothing more.” This testimony is quoted by the court in his memorandum of decision, and was not
The basis of the plaintiffs’ claim of right to charge the interest of the defendant corporation in the leased property with the payment of the balance unpaid by the lessee upon its contract, is section 3 of the Lien Law (Consol. Laws, chap. 33; Laws of 1909, chap. 38), which provides: ‘‘ A contractor * * * who performs labor or furnishes materials for the improvement of real property with the consent or at the request of the owner * * * shall have a lien for the principal and interest of the value upon the real property improved * * * from the time of filing a notice of such lien as prescribed in this article.”
Express consent by the owner is not necessary in order that the property may be charged with the lien. A requirement in the contract that the lessee shall make certain improvements has been held to be a sufficient consent by the owner under the statute to charge his property with claims which accrued in making such improvements. (Jones v. Menke, 168 N. Y. 61.) Consent may be implied from the conduct of the owner indicating willingness that the improvements be made. (National
It was held in McNulty Bros. v. Offerman (164 App. Div. 949) that where the owners refused to bear any of the expense for electric wiring and fixtures, and the lessee for his own purposes contracted therefor, there was no consent or authority by the owners for the outlay, and that the item therefor must be stricken from the lien. The facts of that case are fully set forth upon a former appeal (152 App. Div. 181, 190) where the same conclusion was reached.
It was held in Conant v. Brackett (112 Mass. 18) that an agreement to make repairs and alterations, made with a lessee who has covenanted in the lease to make all necessary repairs and improvements at his own expense, does not subject the estate of the lessor to a mechanic’s lien.
In the case at bar there was' no requirement in the lease that the tenant should perform labor and furnish materials in connection with an electric fighting system. While subsequent to the making of the lease the owner consented to the tenant so doing, such consent was little more than mere passive acquiescence or as one of the plaintiffs testified that the president of the owner did nothing that he knew of more than to watch them working there and see the work that was being put in. Furthermore, the owner’s consent was expressly conditioned to the knowledge of both the plaintiffs and the tenant, upon the owner being exempt from all liability on account thereof When the plaintiffs and the tenant availed themselves of the owner’s consent, they did so with the condition attached to it,
In Wahle, Phillips Co. v. 59th Street-Madison Ave. Co. (supra) much weight was given by the court to the fact that the fixtures were to be permanently attached to and form part of the realty, and this was held to be an important consideration in deciding whether such installation constituted the furnishing of materials and the performance of labor for the improvement of real property within the contemplation of section 3 of the Lien Law.
In the case at bar the evident intention of the parties thereto was that the fixtures installed by the tenant should remain his property, as by the lease the tenant assigned to the owner as security for the payment of rent during the first five years of the lease, all of his interest in the fixtures and property used on the premises in connection with the theatre or mercantile business. Whether or not these fixtures, consisting of 160 lights on the front of the building, those used in the wiring of the machine, and a light in' the office, remained real or personal property, they appear to have been of little material benefit to the owner. Following the tenant vacating the premises in December, 1914, with rent unpaid, and the premises being occupied for one month by another moving picture show which failed, the premises seemed to have remained vacant down to the time of the trial.
Furthermore, I think the plaintiffs’ right of recovery is also barred by their failure to file their lien within the statutory period of ninety days after the final performance of the work. (Lien Law, § 10).
We think that the judgment of the trial court dismissing the complaint as against the defendant corporation as owner, with costs, and granting judgment against the lessee for the unpaid balance, with interest and costs, was just and should he affirmed.
Judgment unanimously affirmed, with costs.
Since amd. by Laws of 1916, chap. 507.-—[Rep.