139 Misc. 410 | N.Y. Sup. Ct. | 1931
Action by plaintiffs as subcontractors to foreclose a mechanic’s hen, filed June 19, 1928, against premises Nos. 112-114 West Forty-eighth street, New York city, for materials furnished and labor performed in and about the erection of a new three-story building on said premises. Plaintiffs are copartners engaged in furnishing and erecting structural and ornamental iron work. Under contract, dated November 30, 1927, made with defendant Eppie Construction Company, Inc., as contractor, plaintiffs undertook to furnish and erect all the structural and ornamental iron work required in and about the erection of a new three-story building on premises Nos. 112-114 West Forty-eighth street, New York city. The said premises were owned by defendants Joseph Minetto and Leontine Minetto and were leased to defendant Delson Holding Corporation by lease dated September 17, 1926, for a period of twenty-one years, from October 1, 1926, with renewals. By the terms of said lease the defendants Joseph Minetto and Leontine Minetto as landlords granted to the tenant: “ The right, privilege and authority, from time to time, to erect a new building or buildings upon the demised premises and from time to time to demolish and remove any building or buildings now or in the future erected upon the demised premises * * * provided no work shall be commenced (upon any new building) until the tenant furnished to the landlord a surety company bond.” Said lease also provided: “ All additions, alterations and improvements made to these premises shall remain at the end of the term hereby demised, or sooner determination of this lease and become the property of the said landlords. A mortgage or mortgages [to an amount equal to sixty-five per cent of the value of the new building or alterations] may be placed by the tenant in the form of a building loan prior to -the erection and completion of such building or buildings. The landlords agree to execute on demand the necessary bonds and mortgages and all other instruments which will be required for the purpose of placing such mortgage or mortgages upon the fee of the demised premises, * * * and further agree that if they shall fail, neglect or refuse to do so, the landlords do hereby and irrevocably appoint the tenant their agent and attorney in fact to execute the aforesaid bonds and mortgages and other instruments that may be required.” In order to finance the erection of the proposed new building, a building loan agree
The owners specifically authorized the erection of the new building by express terms in the lease upon securing a bond for completion and such bond was furnished and was accepted by the owners. The active participation of the owners and of the lessee in the arrangements for financing the new building evidenced by the terms of the building loan agreement and the mortgage simultaneously executed, together with the evidence in the record, sufficiently and convincingly establishes that the owners and the lessee had full knowledge, or its equivalent; that is to say, ample opportunity for complete knowledge in respect to the new building and that they gave acquiescence and consent thereto within the meaning of section 3 of the Lien Law. (See Gates & Co. v. National Fair & Exposition Assn., 225 N. Y. 142.)
• The contention of defendants that the notice of lien is not a
The oversight in the complaint to allege that at the time of filing the hen or prior to the commencement of the action money was due to the contractor (See Wood Mfg. & Realty Co. of Long Island v. Johnstone, 148 App. Div. 747) has been obviated and rendered immaterial by the introduction of evidence at trial, and the pleadings will be deemed amended to conform to the proof. The plaintiffs are not entitled to a personal judgment against the owners as no contractual liability has been established as between
Judgment is awarded to the plaintiffs, together with costs and disbursements of the action. (Lien Law, § 53.) Thirty days’ stay granted to defendants and sixty days to make a casé. Present decision, containing findings of fact and conclusions of law and judgment upon notice.