172 N.Y. 60 | NY | 1902
This action is brought to enforce a mechanic's lien filed by the plaintiff against certain lands in the city of Rochester owned by the appellant. The defendant Friederich is also a lienor. In the spring of 1898 the appellant entered into negotiations for the lease of the premises, which consisted of a tract of about twenty-one acres of land, to the defendant corporation, The Rochester Exhibition Company. These negotiations culminated in a written lease bearing date the 10th day of April, which was executed by the appellant on the 20th day of April and by the exhibition company on the 28th day of April. The work for which the plaintiff's lien was filed consisted of plumbing work and material, and was furnished under a contract between her and the exhibition company dated April 27th. The work was begun on April 28th. The lien of the respondent Friederich was for grading the premises and clearing them of trees. It was also performed under a contract with the exhibition company. The work was begun about the 14th day of March. The lease from the appellant Culver to the defendant exhibition company was for a term ending December 31st, 1902, with the privilege of an extension. It provided that the lessee should not use the premises or permit the same to be used "for any other purpose than the construction, use and maintenance of a general athletic field, with appurtenances; the holding of general athletic games and events, and public amusements and enterprises." It further provided that the lessee should, at the termination of the lease, deliver up the *64 premises in as good condition as when taken, except the trees necessarily removed by the lessee in preparing the property for its use. The lessee was given the right to remove at any time during the lease all buildings, erections and improvements which it might at any time erect or place on the land. On obtaining the lease the exhibition company erected extensive buildings and structures on the premises. For that work other liens were filed besides those of the plaintiff and the defendant Friederich. The trial court found that the appellant did not consent, within the meaning of the statute, to the improvements made by the lessee and rendered judgment in his favor against all the lienors. From that judgment the plaintiff and the defendant Friederich appealed to the Appellate Division, where the judgment of the Special Term, so far as it affected their claims, was reversed and a new trial ordered. From that order the appellant Culver appeals to this court.
The Appellate Division reversed the judgment of the Special Term both on the facts and the law, and, therefore, if there was any evidence in the case from which the court might find that the appellant consented, within the meaning of the statute, to the performance of the work for which the respondents claimed liens, the order of the Appellate Division must be affirmed or the appeal dismissed, as we have no jurisdiction to review questions of fact. If, on the other hand, there was no evidence to support a finding of consent by the appellant, then the order of the Appellate Division was erroneous and the judgment of the Special Term should be reinstated. We think that there is no evidence in the case which would have justified a decision by the Special Term in favor of the plaintiff. The statute (§ 3, ch. 418, Laws of 1897) provides: "A contractor, sub-contractor, laborer or materialman, who performs labor or furnishes materials for the improvement of real property with the consent or at the request of the owner thereof, or of his agent, contractor or sub-contractor, shall have a lien for the principal and interest of the value, or the agreed price, of such *65
labor or materials upon the real property improved or to be improved and upon such improvement, from the time of filing a notice of such lien as prescribed in this article." The question to be determined in this case is the meaning to be given to the term "consent." Doubtless, in a certain sense of the word, the appellant did consent to the performance of the work done on his property, for at the time of the execution of the lease he must have known that the lessee intended to make erections thereon in order to use the premises for the purposes for which they were let. But a similar situation is presented in the great majority of demises of real property. If there is a building on the premises the tenant is, in the absence of an express covenant on the subject, required to keep the premises in ordinary repair. (1 Taylor on Landlord and Tenant, § 43; Suydam v. Jackson,
It appears by the opinion of the learned Appellate Division that that court felt constrained by the authority of NationalWall Paper Company v. Sire (
The facts relating to the claim of the respondent Friederich differ materially from those under which the plaintiff's work was rendered. Friederich began the performance of his contract on March 14th. The lease from the appellant to the exhibition company bears date April 10th, but was not executed by either party till several days later. I think there is no evidence which would justify a finding that the exhibition company entered into possession of the premises as a tenant earlier than April 10th, or that before that time the appellant surrendered his control and possession of the property It is sufficient, however, to say that in the view most favorable to the appellant the court might have found that the appellant was in possession and control at the time the respondent Friederich did his work; and, therefore, for the disposition of this appeal we must assume that the trial court would have so found. We may concede that some of the work done by that respondent did not create any permanent benefit to the *69
land, but a portion of it, consisting of removing stone and grading, was beneficial to the estate. Here again the case in the aspect most favorable to the appellant presents simply the question of fact whether the work was beneficial or not. Therefore, a trial court might have found that the appellant being in control and possession of his land knowingly suffered beneficial improvements to be made upon it. We think that these facts would, under the authorities, render his property liable for the work. (Nellis v. Bellinger, 6 Hun, 560; Husted v.Mathes,
The order of the Appellate Division reversing the judgment and granting a new trial in favor of the defendant Friederich should be affirmed and judgment absolute rendered in that defendant's favor against the appellant, with costs.
HAIGHT, MARTIN, VANN and WERNER, JJ., concur; PARKER, Ch. J., and BARTLETT, J., dissent solely from the affirmance of the order in favor of the defendant Friederich.
Ordered accordingly.