Ottiwell v. Watkins — 15 Daly (N.Y.) 308

Majority

p. 308

John D. Ottiwell against James O. Watkins et al. Jane B. Muxlow, Appellant. Lawrence A. Thole et al., Respondents.

(Decided June 3d, 1889.)

Headnote

M., a married woman, being lessee of premises on which were uncompleted buildings intended for a skating rink, sublet them to W. to be used for that purpose. W. immediately proceeded with the work of completing the buildings, paying no rent while- the work was proceeding. The contractors having stopped work, in default of payment by W., M.’s husband offered to pay for the completion of the work. After the rink was opened, M. and her husband took charge of the premises and appropriated to their own use all the money that was received for admissions to the building. W. was a man of no pecuniary means. Held, that these facts established M.’s consent to the improvements, and that her leasehold interest could be subjected to a mechanic’s lien therefor, under the act of 1885, giving such lien for work done or materials furnished with the consent of the owner.

p. 309

Appeal from a judgment of this court entered upon the • decision of the judge on a trial by the court without a jury.

The action was brought to foreclose a mechanic’s lien claimed by plaintiff for the erection of a building known as the “ Coliseum Rink,” on land belonging to defendant Peter A. H. Jackson, which had been leased by him to defendant Jane B. Muxlow, and sub-let by her to defendant James O. Watkins. The court found that plaintiff was entitled to a lien against defendants James O. Watkins and Jane B. Muxlow. From the judgment of foreclosure and sale entered on this decision, defendant Jane B. Muxlow appealed.

Hugh L. Cole and Edward P. Wilder, for appellant.

Arthur Hurst, for respondents.

The main question on this appeal is whether the appellant, as superior landlord of the premises, is liable for the improvements and repairs made on them under contracts with her lessee. This depends on whether these improvements or repairs were made with appellant’s consent, within the meaning of section 1 of chapter 342, Laws of 1885. What that word, as there used, means, we think well stated by the learned judge who tried the case, when he said: “ Consent implies a degree of superiority, at least the power of preventing; it implies not merely that a person accedes to, but authorizes an act; ” citing Crabbe’s Synonyms. Applying this rule, the learned judge who tried the case, we think, very properly dismissed the complaint as to Jackson, the owner of the fee, who was originally sued with Mrs. Muxlow, the lessee; for there was no evidence that connected him with the work done; he was neither party or privy, nor did he, in the sense above defined, give his consent to such improvements.

Judged by the same rule, we think the evidence fully sustains the findings that the work was done and materials furnished in the course of the erection and completion of the

p. 310

“ Coliseum Rink,’" -with the consent o£ tiie appellant. There is little or no conflict in the evidence. While it is true that the lease executed by Mrs. Muxlow to her lessee Watkins contains no provision that any improvements should be made on the buildings, and while there is no direct proof, of any active consent on her part, to such improvements, yet the whole course of her dealings with the property, the fact that the buildings on the property leased by her to Watkins were erected and intended to be used for a skating rink, yet .were not complete, that further work was required to make.them available for that purpose, that immediately upon taking the lease Watkins proceeded with that work, that no rent was paid while the work was proceeding, that when the contractors stopped, her husband offered to pay for the completion of the work, that immediately upon its completion both Mrs. Muxlow and her husband are found in charge of the premises taking in all the money that was received and applying it to their own use, together with the fact that her husband was the controlling spirit who moved Watkins with whom the mechanics made their contracts, that Watkins was a man of no pecuniary means, and was, as the learned justice regarded him, a mere dummy in the matter, I feel nó hesitation in coming to the conclusion that the lease to .Watkins and his contracts with the mechanics were a mere device, whereby the Muxlows hoped to complete the buildings without expense to themselves, and that it was their intention that the buildings should be completed in the manner they were; and these facts, together with her dealings with the former lessees, fully establish her consent to the making of the improvements as they were made, and her liability for them.

The appellant objected to the introduction of any evidence of the former dealings. Where a scheme of this kind is started, the proof of the owner’s complicity does not lie on the surface, but must be inferred from the way in which he dealt with the property, and the earlier transactions were properly admitted in evidence to throw light upon that question.

p. 311

I think no error was made on the trial of the case, and that the judgment should be affirmed, with costs.

Allen, J., concurred.

Judgment affirmed, with costs.