3 N.Y.S. 869 | N.Y. Sup. Ct. | 1889
The grounds upon which this appeal seems to be based-are these: First. That the machinery in question, which was furnished to-the building against which a lien is sought to be obtained, is not the subject-of a lien, in that it is not, within the words of the laws of 1885, erecting, altering, or repairing a building, but that it is the erecting of machinery in a. building, which is not, under the terms or within the spirit of the act itself, the subject of aflien. Second. That it appears from the laws of New Jersey, and from the certificate of incorporation of the plaintiff, that it had no power to contract outside of the state of New Jersey, and therefore the contract in question, being made outside of the state, was beyond its power. Third. That it does not appear that the notice of lien in this case was filed within 90 days after the completion of the work, or the final fiurnishing of material, as required by the mechanic’s lien law.
The second objection, namely, that the plaintiff acted ultra vires in the making of the contract for tiie furnishing of this machinery, seems to be disposed of by the court of appeals in the case of Arms Co. v. Barlow, 63 N. Y. 62, in which it is held that the plea of ultra vires is no defense to an action based on a contract obligation, when the contract on behalf of the corporation has been executed in good faith, and the defendant has reaped the benefit of' the performance.
The first objection, that the character of the work done was not such as is-contemplated by the mechanic’s lien law, is entitled to more consideration. But an examination of the evidence shows that the property upon which this machinery was placed was a brewery; that it was constructed for a.brewery;, and that this machinery was placed in said building as part and parcel of the-machinery by which the brewery was to be operated. It is true that portions-of the machinery could be removed by the unscrewing of bolts and the taking off of nuts; but it is apparent that this machinery was placed upon these-premises with the intention that it should become part and parcel of the brewery, and should be annexed thereto. It would hardly be claimed that had a-purchaser taken a deed of this brewery, or contracted for the purchase thereof, that the grantors could have removed this machinery from the building, and claimed a specific performance of the purchase. It is precisely similar to a case where machinery has been erected in a grist-mill which becomes part and parcel of the building itself because the building is to be devoted to the purposes for which the machinery is to be used, and neither one is complete in
It will thus be seen that the question as to whether machinery supplied to a building becomes part and parcel of the building, and affixed to the freehold, depends largely upon the question of intention, and this intention is largely to be gathered from the circumstances surrounding the person putting in the machinery; as, where such machinery is provided by a tenant for the purpose of carrying on his business, the presumption is that he did not intend to attach it to the freehold, but to remove it during his term. On the other hand, where the owner of the fee puts into buildings machinery necessary for the prosecution of the business for which the buildings were erected, he is held to have intended that such machinery should become attached to the freehold and be part and parcel thereof. Applying this rule to the case at bar, it is plain that the erection of the machinery forming the subject-matter of this action was intended by the owner of the fee at the time of making the contract to become part and parcel of the freehold, as it was necessary for the profitable carrying on of the business for which t%e buildings were erected. It would seem, therefore, that it came within the provisions of the mechanic’s lien law, as it was the altering and repairing of a portion of the appurtenances to the brewery building.
The last objection, that the lien was not filed within 90 days after the completion of the work or the final furnishing of the material, is based upon the fact that the actual erection of the machinery was completed on or about the 13th of June, and the engine was started. The plaintiffs’ constructing engineer, however, had charge of the work, and was making alterations therein, by keying it up, and he did his last work on the 21st of June, when the machinery worked to his satisfaction; and on the 23d of June, after running the machine for two days longer, and being satisfied that it worked entirely well, he asked Mr. Yuengling to accept the engine, and Mr. Yuengling gave him