54 N.Y. 269 | NY | 1873
Lead Opinion
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *271 This was a proceeding in the Common Pleas of New York, under the mechanics' lien law of 1863. (Ch. 500, Laws of 1863, p. 859, etc.) It involved the construction of the 6th section of the act which defines the cases in which a lien shall exist, and the precise inquiries necessary to be answered in order to dispose of this case is in what sense the word "owner" is employed in that section. The section provides that any person who should thereafter * * in pursuance of or in conformity with the terms of any contract with or employment by the owner, or by or in accordance with the directions of the owner or his agent, perform any labor or furnish any materials toward the erection of any building in the city of New York, should, on complying with the 6th section of the act, have a lien for the value of such labor and materials — upon such building and the appurtenances, and lot on which the same shall stand, to the full value of such claim or demand, and to the extent of the right, title and interest then existing of the owner of said premises. The settled construction of this section is, that no lien can be created on the interest of any person as owner of the premises, except such person shall, either himself or by his agent, enter into a contract for doing the work, either express or implied. All this is implied in the expressions describing the conditions which are necessary to a lien. To that end, the labor or materials must be furnished in conformity with a contract with or employment by, or by the directions of the owner or his agent. Together, these phrases mean contracts express or implied; and no one is owner in the sense of this statute, who is not contractor also for having the work or materials expended or performed upon his land. Knapp v.Brown (45 N.Y.R., 207), is fully in point, and establishes *273 the construction stated. The appellants were the owners in fee of the lot in question, and had leased it for a dwelling and bathing establishment to Vierkant for five years. He covenanted that no alteration should be made on the premises except in basement, floor and cellar, without the written consent of the appellants for such purpose, and that such changes of doors, windows, partitions, plumber's work, etc., etc., and all things belonging thereto, should be restored as they were at the commencement of the lease, prior to its end, by the lessee, at his own expense, if the lessors desired.
Vierkant contracted with Muldoon, the appellants did not. Their only instruction was by way of supervision, to see to it, at Vierkant's request, that the building to be erected for him and the alterations to be made in the existing building, should be suitable to his interest and not injurious to theirs; they not having given any consent, in writing, to alterations. These directions, however positive and effectual in regulating the work, did not constitute them, in any sense, parties to a contract, express or implied, with Muldoon. The testimony left no room for any other conclusion, and the Common Pleas were well warranted in reversing the decision of the referee in respect tö these defendants. The proceeding under which their determination was made is peculiar in its character and is regulated by the 7th section of the act. (Laws of 1863, p. 863.) The court is authorized to refer the whole matter to a referee to examine, and pass upon the rights of the respective parties, and report upon the same in a summary manner, as in case of claims to surplus moneys in mortgage cases, on which every party shall be at liberty to take proofs for or against any claim or lien, and such judgment or decree shall be made thereon as to the rights and equities of the several parties, among themselves and against any owner, as may be just. An appeal is given to the General Term, to be heard and decided as in case of appeals from an order at Special Term, and also to the Court of Appeals, by any party held liable for or claiming more than five hundred dollars. When, upon an issue, a trial by jury is a matter of right, a *274 final judgment ought not to be rendered by a court on appeal, contrary to the finding of a jury, unless it affirmatively appears as an inevitable necessity that the party cannot succeed upon a new trial. But in a proceeding of an equitable character it is only necessary that the appellate court should be satisfied that a final judgment will not work injustice. In this case it was obvious that the whole merits were before the court, and there was therefore no necessity for granting a new trial, for, on the principles settled by the decision, the plaintiff could not maintain his claim against the appellant.
Judgment should be affirmed with costs.
All concur.
Judgment affirmed.
Addendum
The plaintiff and defendant Donnelly, both filed liens upon the premises mentioned in the complaint, and the plaintiff commenced this action to enforce his lien, making Vierkant the tenant, the Pitts the owners, and Donnelly defendants. The defendants all appeared and answered. The cause was then referred, pursuant to section 7, chapter 800 of the Laws of 1863, and tried before the referee. The referee made his report, by which he found that the tenant and owner were both liable to the plaintiff for the amount of his claim, and he ordered judgment against such defendants for the amount of such claim with costs; and he ordered judgment against the plaintiff for the amount of Donnelly's claim. This report was confirmed at Special Term, except that costs were awarded to Donnelly against the plaintiff. Judgment having been entered upon the report as thus modified, the Pitts appealed to the General Term of the Common Pleas as to so much of the judgment as was against them, and the *275 plaintiff appealed from so much of the judgment as awarded costs against him in favor of Donnelly. It appears that the cause was brought to argument at the General Term, and that then, after hearing counsel for plaintiff and for the Pitts, the judgment as to the Pitts was reversed. The plaintiff then appealed from this judgment of reversal to the Court of Appeals, serving his notice of appeal upon the attorneys for the Pitts and also the attorney for Donnelly. The cause was brought to argument in this court and the judgment appealed from was affirmed. Upon the argument, counsel for Donnelly appeared and claimed that the appeal to this court should be dismissed as premature, because the plaintiff's appeal to the General Term had not been disposed of. It is now claimed that no notice was taken by this court of this claim of Donnelly's counsel, and a motion is now made by the same counsel to dismiss the appeal, upon substantially the same ground, or for a reargument of the cause.
It would probably be a sufficient answer to this motion that the remittitur has been filed in the court below and that the cause is not pending in this court. But if the exigency of the case seemed to require it we could, doubtless, request the remittitur to be returned to this court, and such request would probably be complied with.
It was, doubtless, irregular to enter a judgment and appeal to this court until all the appeals from the same judgment to the General Term had been disposed of. But there was nothing in the record showing that they had not been disposed of. Judgment had been entered upon the decree of the General Term, and an appeal from such judgment had been taken to this court. No objection seems to have been taken to the entry of the judgment and no motion made to set it aside or vacate it; hence, this court had the right to suppose that plaintiff's appeal to the General Term had been settled, discontinued or disposed of, in some other way.
If Donnelly's counsel claimed that the judgment of the General Term was prematurely entered, he should have *276 moved to vacate or set it aside, and not wait until after the cause was moved for argument upon the appeal before he makes the objection.
This court has disposed of the only appeal before it, and the whole cause has been remitted to the Court of Common Pleas. If defendant Donnelly is entitled to any relief he must seek it there.
There is another reason for denying this motion; Donnelly is not a party to the appeal to this court; he is in no way affected by it and has nothing to do with it; he cannot, therefore, be heard here.
Motion denied, with ten dollars costs.
All concur.
Motion denied.
