101 N.Y.S. 382 | N.Y. App. Div. | 1906
This action is brought to foreclose a mechanic’s lien, and from the judgment decreeing a foreclosure of the lien and a sale of the premises affected by it, the defendant Skelly, the owner of the premises, appeals.
The lien is asserted for labor performed and materials furnished in the repair of an ice plant, pursuant to a contract with the defendant Smith, who was a lessee in possession of the premises, and it is claimed that such labor was performed and such materials furnished with the consent of the appellant’ within the meaning of section 3 of the Lien Law (Laws of 1897, chap: 418). It is claimed by the appellant that the machinery upon which the labor was performed, and for which said materials' were furnished, was not so affixed to the realty as to be a part thereof, but it is so plain from the use made of the property and from its description in the lease from the defendant Skelly to the. defendant Smith that the parties considered and treated said machinery as a part of the realty, that this question requires no extended discussion.
A serious question is presented, howevei1, by the claim of the appellant that the finding that he consented to the repairs being made is unsupported by the evidence. The only evidence bearing upon the question independently of the lease itself is the testimony of one witness, to the effect that the defendant Skelly was present at one time when certain work was being done on the engine, and that upon his attention being called to it he remarked that it was hot necessary; but this tends to negative rather than to support the claim of consent. The lease contained a provision that no alteration- of the premises should be made without the written consent of the owner. It also contained the following provision respecting repairs, viz.: “ And the said party of the second part further covenants and agrees to use said rented premises only for lawful purposes and keep the premises in good order for the full term of this lease at his own cost and expense and also that he will keep during the term of this lease all the-Machinery and Boilers in good working order at his own cost and expense and at the end of the term leave said Machinery, Boilers and Buildings in as good condition as reasonable wear and tear will allow.”
The statute under consideration has frequently been construed and
With these rules in mind we are to examine the covenant in question to ascertain whether the statutory consent can be implied from it. The appellant asserts that the covenant adds nothing to the tenant’s common-law obligation to make repairs, and cites Suydam v. Jackson (54 N. Y. 450) as authority for the proposition that the tenant is bound to make repairs, but if it is meant by the expression used that the tenant is obliged to make good the ordinary deterioration of the property, either from use or the elements, I do not understand the case cited to be authority for the proposition. The question decided by that case related to the construction of chapter 345 of the Laws of 1860, and it was held that the destruction or. injury which would relieve the tenant from the obligation of paying rent under that statute must result from some sudden or unexpected action of the elements or other cause, and not from gradual deterioration and decay, and I think it clear from the opinion of the learned "judge who wrote in that case that when speaking of the common-law obligation of the tenant to repair, he had reference only to his duty to refrain from committing waste either by some affirmative act or by permissive negligence. This is made reasonably clear from his quotation from Comyn on Landlord and Tenant,
We think in the- light of the cases cited, that giving a fair interpretation to the covenant in question, the.tenant was required to put the “ Machinery and Boilers in good working order,” and to Tceep them so during the term. The appellant Skelly must, therefore, be deemed to have consented, within the meaning of the statute, to
The judgment should be affirmed, with costs.
Hirschberg, P. J., Woodward, Hooker and High, JJ., concurred.
Judgment affirmed, with costs.
See 2d ed. p, 188.— [Rep.