16 Daly 159 | New York Court of Common Pleas | 1890
The owner of the premises demurred because the lien, a copy of which is annexed to the complaint, did not contain the statement that the lien was claimed against the interest of the said owner; also on the ground that the allegation in the complaint that the defendant, the owner, had full knowledge of, and consented to, the doing of the work, was insufficient, there being no averment of any agreement or contract with him. The demurrer was sustained upon both grounds.
The lien act provides that persons performing work, etc., in erecting any house, etc., “with the consent of the owner, ” may have a lien upon the house and lot wherein it stands, and also provides that the notice of lien shall state “the name of owner, lessee, general assignee, or person in possession of the premises, against whose interest a lien is claimed. ” Laws 1885, c. 342, §§ 1, 4. In the notice filed by this claimant is a statement that “the name of the owner of the leasehold against whose interest a lien is claimed is Ignatz Schmitt, and the owner of the fee of said premises is John Simon; that the name of the person by whom claimant- was employed, and to whom he furnished such
It remains to be considered whether the allegations of the complaint are sufficient as a statement of a cause of action against Simon, the owner. The complaint sets forth, in substance, that the defendant John Simon was and is the owner of the premises described in the complaint, being a lot of land in the city of Hew York; that he leased the lot and the house thereon, for the term of 21 years from May 1,1888, to the defendant Ignatz Schmitt, by instrument duly recorded; that Schmitt assigned the lease to the defendant Barbara Schmitt; that the defendant Muir contracted with her to do certain work, labor, and services, and furnish materials in and about the erecting, altering, or repairing of the house or building on the premises, for the sum of $2,175, and so far completed the same as to become entitled to receive a sum largely in excess of plaintiff’s claim, who, under contract with Muir, did certain nlastering and furnished materials for the said building for the sum of $245, upon which there is due $120; and that the defendant John Simon, the owner of the fee of said premises, had full knowledge of the erecting, altering, and repairing of said buildings, and consented to the same, and to the perform-' anee of the labor and supplying of the materials by the plaintiff as above set forth. The averment is, I think, sufficient, under the statute. It is not necessary to aver how, or under what circumstances, the consent of the owner was given, any more than it would be necessary to set out the particulars of a contract if the averment had been that the work was done under or pursuant to a contract with him. In other words, the evidence in support of the allegation of consent is not to be pleaded. What the liability, if any, of the ■owner may be found to be, upon the facts proved, is a wholly different question from that before us, which is a matter of pleading only. Under the lien act of 1873, e. 489, giving a lien upon the house and lot where the work is done and materials are furnished “ with the consent of the owner,” it was held that the simple consent of the owner is sufficient, without proof of a contract by him for the improvements. Otis v. Dodd, 90 N. Y. 336. In that