Ombony & Dain v. Jones

21 Barb. 520 | N.Y. Sup. Ct. | 1856

By the Court, S. B. Strong, J.

The plaintiffs, in order to enforce or bring to a close their alleged lien, for materials furnished in constructing a building for one Ward Barmore, served a -notice personally on him, requiring him to a-ppear in this court, to be held in the county of Westchester, where the building was situated, and to submit to an accounting and settlement for such materials. Barmore made default, and a judgment was eventually obtained against him, under which an execution was issued, and the building was sold to Ingersoll &■ Clapp, who transferred it to the plaintiffs. The defendant was, and is, the owner of the land upon which the building in question was erected, and now stands. ' He claims that the building was his absolute property, and he contends that if it was not, the proceedings to enforce the alleged lien were not warranted by the statute of April 16, 1852, which was then in force.

One objection urged against those proceedings is that the specification required by the 2d section of the act was not served upon Barmore within the requisite period of twenty days after the materials had been furnished. That may have been a satisfactory defense for Barmore, if he had thought proper to interpose it, but he did not; and in the absence of any objection from him it may be inferred that he either had none, or intended, if he had any, to waive it. This court had jurisdiction of the proceedings, and the requisite process had been served upon him personally; and if there was subsequently any irregularity, or any defect in the evidence adduced by the plaintiffs, he was concluded by the judgment. And whether he was or not, no other person could object to it so far as it related to his interests, or the rights of those claiming under or through him.

It was also objected that supposing that Barmore had a right to remove the house when his right to occupy the land upon which it was erected had ceased, still, and especially as he was not the proprietor of such land, he was not such an owner as is designated in the first section of the lien law, and against whom proceedings under it could be maintained. The first part of that section speaks of a contract with the owner of the building, and it subsequently says that the lien shall be upon such building, and upon the lot of land on which the same shall stand, to the extent of the existing interest of the owner of such building. The qualification shows that the act did not require that the defendant in the proceedings under it should necessarily be the absolute owner of the soil. If he might be considered as the general owner of the building that would be sufficient. The lien extended to his interest in the building, and in the land if he had any.

The principal question in this case is whether Barmore was, to the extent required by the statute, the owner of the building erected by him on the defendant’s land. He had constructed it upon land occupied by him as a sub-tenant, with the assent of the landlord, at his, own expense, for his own use, and with the declared intent (under the circumstances) of removing it when his residence upon the land should terminate; the foundation was to some extent imbedded in the earth, but the building was not in any manner fastened to it, nor to the main building; and it could be removed without doing any damage to the soil, or to the other erections upon it. -The kitchen had been removed, and in doing this some violence had been perpetrated upon the dwelling house. But that was with the knowledge, and I think it may be fairly inferred with the assent, of the owner, and was by no means prejudicial to him. Under these circumstances it seems to me that pursuant to the liberal and just principles which have latterly prevailed, the building was the property of the tenant, with the right to remove it away when his residence upon the land should terminate: unless indeed there was some express provision in the lease under which he assigned his right of occupancy which prevented or qualified it. The defendant contends that there was a reference in the lease to a provision in a prior lease by him to Hall, which prevented the acquisition of any title to the building in question by the under-tenant who constructed it. In the lease to Hall thefe is a covenant by the lessee to leave on the premises at the end of his term all trees, shrubbery, buildings, fences, and all other additions and improvements that might be put there by the lessee. In the lease to Win ant under which Barmore occupied, the lessor agreed to lease and rent the demised premises with all the privileges belonging thereto as enjoyed by Hall. The reference to the lease to Hall was for the purpose of defining the privileges intended to be conferred by the new lease. That is conformable to the grammatical rule, and I think corresponds with the intention of the parties, as the word “ enjoyed” is peculiarly applicable to privileges, and not at all so to the performance of covenants by the person upon whom they are conferred. I think that there is nothing in the lease to Winant which at all interfered with Barmore’s right to the building in question.

[Dutchess General Term, April 8, 1856.

I have said that no person other than Barmore could raise the objection that the specification required by the statute had not been served in season, so far as it related to his interests or the rights of those claiming through or under him. In that I did not intend to include any rights of third persons acquired before the suit. Of course a judgment in a suit to which such persons were not parties could not affect their interests previously vested. The mortgage to Winant was given before the proceedings to enforce the lien had been instituted, and after the time for serving the specification had elapsed, and therefore if such specification had not been seasonably served, the lien of the mortgagee was at least superior to that of the material man. It was not proved, however, that the defendant had any interest in the mortgage, and it is no defense to an action by the proprietor of personal property to recover its value from a wrongful possessor, that it has been mortgaged to some other person with whom he has ho connection.

The judgment should be affirmed.

Brown, S. B. Strong and Rockwell, Justices.]