77 N.Y.S. 509 | N.Y. App. Div. | 1902
This is an action to foreclose a mechanic’s lien against the owners of property for services rendered and material furnished at the request of the tenants, with the consent of the owners. The defendants, as trustees under a will, are the owners of certain premises in the city of Hew York, which were leased by them on March 9, 1900, to J. W. Aspell & Co., for a period of five years. The rental for the premises for the first year was the sum of $2,200, for the second year $7,500 and thereafter at a slight increase over the rental of the second year for the remainder of the term. It was agreed by the parties in one of the covenants of the lease that the lessees should put in and complete within three months from the signing of the lease a steam heating and elevator plant at their own expense, the same to belong to the lessors at the completion of the term. The tenants in fulfillment of this covenant entered into a contract with the plaintiff to furnish the elevator as called for in their lease. The agreed price of the same was $1,335, one-half of which by oral agreement was to be paid for at the time the machine was delivered. The three months’ time within which this elevator was to be completed was. thereafter extended by the defendants. The plaintiff commenced work thereon about July twentieth and continued until about August fifteenth, when it ceased all work upon the elevator, leaving the same uncompleted. To put this new elevator in it wás necessary to tear out the old one, so that at the cessation of the plaintiff’s work on August fifteenth there was no elevator in the building which could be used. The plaintiff ceased work, not from any interference by the defendants, but for the reason that it had not received any pay from the tenants as agreed, and because it discovered their insolvency, which it appears it had suspected before entering upon the contract. In regard to the insolvency of Aspell & Co., it appears that on July 7, 1900, the sheriff had taken possession of all their property and retained possession of the same until'September twenty-second ; that a petition was filed against them on August ninth; that later they were adjudged bankrupts, and that notice to surrender possession of the premises had been served upon them on August tenth for non-payment of rent. The amount of work necessary to complete the contract on August fifteenth was some $370, more than a fourth of the contract price.
If this were the only question presented by this appeal we should have little difficulty in sustaining the plaintiff’s right to a lien. It appears, however, that, the plaintiff abandoned its contract and failed to complete the improvements which it had entered upon, for which the lease provided and which the consent of the owners contemplated. The net result of the whole transaction to the owners of the building is this: they have paid for the entire improvement for which the lease made provision in the. reduced rental received for the use of the premises. At the commence- • ment of such improvement they had an operating elevator; this was torn out and the plaintiff has substituted therefor an incomplete elevator unfinished in every essential particular and absolutely useless for purposes of operation. To complete the same requires an expenditure of more than a fourth of the contract price. In De Klyn v. Gould (165 N. Y. 282) it was held that an owner of property could not be charged for improvements made, upon the premises even though he consented to certain specific changes thereon where there is a material departure from the specifications to which the owner consented, which largély increased the cost of the improvements. This case was construed in Jones v. Menke (supra) as holding that there would be no liability except for the improvement specified in the contract, to which the consent was given. In principle, an owner cannot be charged for improvements which, are incomplete and which fail to comply with the terms and specifications under which they were to be done and upon the performance of which the consent is based. An owner-under such circum
It follows that the judgment and order should be affirmed, with costs.
Van Brunt, P. J., Patterson, Ingraham and Laughlin, JJ., concurred.
Judgment and order affirmed, with costs