Hyperlawhypertext legal database Butler v. Flynn 51 A.D. 225

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Butler v. Flynn

51 A.D. 225 Court N.Y. App. Div. English

Delivered by Goodrich, P. J.:

Contents

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p. 225
Israel Butler and David J. Butler, Copartners, Doing Business under the Firm Name of Butler Brothers, Respondents, v. John T. F. Flynn, Appellant, Impleaded with Albin Hartung.

Headnote

Mechanic’s lien — consent by the owner of land to a tenant’s building thereon.
33 violence considered which is sufficient to warrant a finding that an owner of real property consented, within the meaning of section 3 of the Lien Law (Laws of 1897, chap. 418), to the execution by a tenant of the property of a contract for the erection of a building thereon.
The consent clause in the Lien Law proceeds upon the equitable principle[1] that one who knowingly receives the benefit of the labor or property of another in the form of improvements upon his land, ought to have his property subjected to a lien for the value of such improvements.
Appeal by the defendant, John T. F. Flynn, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Richmond on the 6th day of Eovember, 1899, upon the decision of the court, rendered after a trial at the Richmond Special Term, adjudging that the plaintiffs have a good and valid mechanic’s lien upon all the right, title and interest of said Flynn and Hartung and each of them to the lands in said judgment described, and directing a sale thereof and the payment to the plaintiff, out of the proceeds of the sale, of the sum of $2,900.08 and interest from Eovember 1, 1899, together with $146.42 costs.
George Bell, for the appellant.
George M. Pinney, Jr. [ Warren C. Van Slyke with him on the brief], for the respondents.

The action ivas brought to foreclose a mechanic’s lien upon property owned by. the defendant Flynn. The question involved is whether Flynn consented to the contract for the work done and materials furnished by the plaintiffs in the erection of a building upon premises of which the defendant Hartung had been in

p. 226
possession for several years, as tenant under a yearly lease, the term being from May to May. In the autumn of ■ 1898 Hartung and Flynn entered into an Oral contract' by which the former was to purchase the property for $5,800, to be-paid on November 1, 1898, the timé being afterward extended by Flynn to January 1, 1899. Hartung, on November 28, 1898, made a written contract with "the plaintiffs under which they were to erect a building on the premises, and testified that before it was executed he showed to Flynn a draft of the proposed contract together with the plans and specifications. “ I told him I was going to put up that building and showed him the plans and everything. I said, £ Is it all right; can I go ahead?’ Mr. Flynn said, ‘ Yes.’ * * * I saw Flynn from time to time after Butler Bros, started work on the new" building, perhaps four or five times. * * . * He always asked me how the building was getting along, and I said it was getting along all right. * * * The plans were shown to Mr. Flynn on. Saturday, and I asked Mr. Flynn, £ Can I go. ahead ? ’ Mr. Flynn said £ yes.’ Monday morning they started in.”

Flynn denies that Hartung showed him a draft of the- contract, but admits that he showed him the plans; that he is not sure that he did not also show him the specifications, and that he said : “ ‘ Where’s your plumbing,’ off-handedly, as a sort of expert on plumbing.” He also admits that he knew the old building had been removed to another part of the lot.

The court found that Flynn inspected and assented to.the contract, plans and specifications; that, he gave permission for the erection of the building and consented thereto, and ordered -judgement of foreclosure. From this judgment the defendant Flynn appeals.

The .Lien Law (Chap. 418, Laws of 1897) provides as follows :

“ § 3. 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 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.”
p. 227
This consent clause proceeds upon the equitable principle that one who knowingly receives the bénefit of the labor or property of another, in the form of improvements upon his land, ought to have his property subjected to a lien for the value of such improvements. In the present case, there was evidence sufficient to support the finding of the court that Flynn consented to the contract of the plaintiffs for the erection of the building, and there is no reason, why the land should not be held subject to their lien.

The judgment should be affirmed.

All concurred.

. Judgment affirmed, with costs..

Statutes and regulations cited